Kumar (Migration) - [2019] AATA 1496

Kumar (Migration) [2019] AATA 1496 (4 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ajay Kumar
Mrs Usha
Mr Rehaan Rana
CASE NUMBER:  1710044
HOME AFFAIRS REFERENCE(S):           BCC2016/3285167
MEMBER:Katie Malyon
DATE:4 January 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 04 January 2019 at 5:13 pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visas – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Motor Mechanic (General) – no approved nomination – sponsor’s business placed in liquidation – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 2
Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13
CASES
Hasan v MIBP [2016] FCCA 1049
Kaur v MIBP [2017] FCCA 564
Singh v MIBP [2016] FCCA 2229
Singh v MIBP [2017] FCAFC 105
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 4 October 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.
In the present case, the first named applicant – Indian national, Mr Ajay Kumar - is seeking the visa in the Direct Entry stream, to work in the nominated position of Motor Mechanic (General). Initially, the applicants were represented in relation to the review by their registered migration agent.
The delegate refused to grant the visas on the basis Mr Kumar did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application made by his prospective employer was refused by the Department. A copy of the delegate’s decision was provided to the Tribunal.
Background
Mr Kumar was nominated to fill the position of Motor Mechanic (General) by Orange Mamba Pty Ltd (the Company) trading as LK Motors, which is based in Cairns. However, the nomination application made by the Company was refused by the Department on 4 April 2017. As a result, the Department refused Mr Kumar’s Subclass 187 visa application. The Company sought review of the delegate’s refusal of its nomination application in related matter number 1708985.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kumar (Migration)

Details

AGLC: Kumar (Migration) [2019] AATA 1496
Case: [2019] AATA 1496
Decision Date: 4 January 2019

CaseChat Overview and Summary

This matter concerned an application for a Subclass 187 Regional Sponsored Migration Scheme visa, Direct Entry stream, for the position of Motor Mechanic (General). The applicant, Mr. Kumar, sought review of a decision affirming the refusal of his visa application. The primary issue before the Tribunal was whether the nomination for the position had been approved in accordance with the requirements of cl.187.233 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if an approved nomination existed for Mr. Kumar's visa application, considering the specific criteria outlined in cl.187.233. These criteria include that the position must be nominated in regional Australia, the employer must be the nominator, the nomination must have been approved and not withdrawn, there must be no adverse information known to the Department or such information must be disregarded, the position must remain available, and the visa application must be lodged within six months of the nomination's approval. The Tribunal also had regard to the Full Federal Court's decision in *Singh v MIBP*, which held that the nomination process is a "once-off" event.

The Tribunal reasoned that, based on the available information and the principles established in *Singh v MIBP*, an approved nomination was a prerequisite for the visa application. It noted that publicly available information indicated the sponsoring company had been placed in liquidation prior to the hearing. As the nomination process was considered a "once-off" event, and there was no evidence of an approved nomination in relation to Mr. Kumar's application, the Tribunal concluded it must affirm the delegate's decision. Mr. Kumar acknowledged the company's liquidation and stated he was now employed by the new owners of the business.

The Tribunal affirmed the decision not to grant the visa. It advised Mr. Kumar that if he wished, he could seek ministerial intervention directly, providing detailed submissions and evidence to the Minister, and suggested he might seek professional advice in this regard.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in Mr Kumar’s case is whether the Minister (that is, the Department or the Tribunal) has approved the relevant nomination for the purposes of cl.187.233 of Schedule 2 to the Regulations. Nomination of a position Clause 187.233 of Schedule 2 to the Regulations, as applicable in this case, is set out in full in the Attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, the criterion also requires that:·the person who will employ the applicant is the person who made the nomination;·the nomination has been approved and has not been subsequently withdrawn;·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B), or it is reasonable to disregard any such information; ·the position is still available to the applicant; and,·the visa application was made no more than six months after the nomination of the position was approved.Hearing At the commencement of the hearing, the Tribunal identified that the issue in this review is whether there is an approved nomination by the Company for the purposes of cl.187.233 of Schedule 2 to the Regulations and it explained the requirements of this provision. It also observed that, as set out in its s.359A letter, the recent Full Federal Court of Australia decision in Singh v MIBP[1] the Court held that it is a “once off” process.[2] The Tribunal stated that, if the applicants had appeared before the Tribunal (in Sydney), it would have provided them with a copy of their Subclass 187 visa application so that they could see the declaration made by Mr Kumar regarding the specific nomination by the Company when the visa application was lodged on 4 October 2016. Mr Kumar acknowledged the implications of the decision in Singh’s case for the applicants’ visa application. [1] [2017] FCAFC 105. See also Kaur v MIBP [2017] FCCA 564; Hasan v MIBP [2016] FCCA 1049; Singh v MIBP [2016] FCCA 2229. [2] [2017] FCAFC 105, Mortimer J at [90]. The Tribunal noted that publicly available information indicates that the Company was placed in liquidation on 24 September 2018. It also observed that, based on the reasoning in Singh’s case referred to above, it is a “once-off” process and, as a consequence, the Tribunal must affirm the delegate’s decision since there is no approved nomination in relation to Mr Kumar. Asked for his comments, Mr Kumar said that he was aware of the Company’s liquidation. He added the business of LK Motors has since been sold: it is now is now running and going well and, further, he continues to be employed as a Motor Mechanic with LK Motors’ new owners.

Decision

Reasons for decision

As discussed with Mr Kumar during the hearing, as the Tribunal has insufficient documentation to enable it to make an assessment as to whether this is an appropriate case to refer to the Minister consistent with the guidelines published by the Minister, it is open to Mr Kumar, if he so wishes, to seek ministerial intervention directly and, ideally, provide a detailed submission and evidence to the Minister for his consideration. The Tribunal noted he may wish to seek professional advice to assist him and any prospective employer in this regard. DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.Katie MalyonMemberATTACHMENT - Extract from the Migration Regulations 1994Schedule 2 ..187.233(1) The position to which the application relates is the position:(a)nominated in an application for approval that seeks to meet the requirements of:(i)subparagraph 5.19(4)(h)(ii); or(ii)subregulation 5.19(4) as in force before 1 July 2012; and(b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.(2) The person who will employ the applicant is the person who made the nomination.(3) The Minister has approved the nomination.(4) The nomination has not subsequently been withdrawn.(4A) Either:(a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.(5) The position is still available to the applicant.(6) The application for the visa is made no more than 6 months after the Minister approved the nomination.oOOo

Ratio Decidendi

Legal Principle Established

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