Kumar (Migration) - [2019] AATA 925

Kumar (Migration) [2019] AATA 925 (19 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Pankaj Kumar
CASE NUMBER:  1825377
HOME AFFAIRS REFERENCE(S):           BCC2017/3199003
MEMBER:R. Skaros
DATE:19 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.
Statement made on 19 March 2019 at 2:43pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Musician – subject of an approved nomination – nomination application refused – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233
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 Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 4 September 2017. 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Musician with KC International Consultants Pty Ltd.
The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination of the position made by KC International Consultants Pty Ltd in respect of the applicant had not been approved.
The applicant provided a copy of the delegate’s decision record which indicates that the nomination was refused by the Department on 4 July 2018.
On 13 December 2018, the Tribunal wrote to the applicant noting that the nomination of the position has not been approved and requesting the applicant provide information as to whether the relevant nomination has been approved or if there is a pending application for review of the decision not to approve the nomination. The applicant responded by email on 27 December 2018, stating that he did not have an active nomination.
The Tribunal invited the applicant to appear before it by telephone on 12 March 2019 to give evidence and present arguments. Prior to the hearing the applicant wrote to the Tribunal requesting the hearing be postponed for medical reasons. The applicant provided a medical certificate indicating he was not fit for his usual occupation…

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 925
Case: [2019] AATA 925
Decision Date: 19 March 2019

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, by Mr. Kumar. The applicant sought review of a decision to refuse his visa application. The Tribunal was required to determine whether the applicant had met the criteria for the visa, specifically concerning an approved employer nomination.

The primary legal issue before the Tribunal was whether the applicant's employer nomination had been approved, as required by clause 187.233 of the Migration Regulations. The Tribunal also considered the applicant's request for an adjournment to obtain a new nomination, and whether a new nomination could satisfy the visa requirements.

The Tribunal reasoned that clause 187.233(3) mandates that the Minister must have approved the nomination. The evidence before the Tribunal indicated that the nomination made by KC International Consultants Pty Ltd had been refused by the Department and had not been revoked or set aside on review. The Tribunal noted that, in accordance with judicial interpretation, the nomination relied upon to satisfy clause 187.233 must be the one made at the time of the visa application. Consequently, a new nomination would not assist the applicant in meeting the existing visa requirements. The Tribunal also determined that delaying the decision to allow the applicant to seek a new nomination would be without merit.

The Tribunal affirmed the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa, as the applicant had failed to meet the essential criteria for the visa in the Direct Entry stream.

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 the present case is whether the nomination has been approved.Nomination of a position Clause 187.233 as applicable in this case is set out in full in an 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, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position. In addition, this criterion also requires that the nomination has been approved. The applicant applied for the visa on the basis of an employer nomination, in which he was identified as the person for the position, made by KC International Consultants Pty Ltd. That nomination, as indicated in the decision record, was refused by the Department. There is no evidence before the Tribunal which indicates that the nomination has been revoked or set aside on review. Furthermore, the applicant indicated that he does not have a nomination. At the hearing, the Tribunal discussed with the applicant the requirements in cl.187.233 and the information before it which suggests he does not meet that requirement. In response, the applicant stated that he wished to apply for a student visa but was advised by his migration agent to lodge an employer nomination visa as they promised they could obtain a nomination for him. He stated that he was advised by the agent that his visa had been granted but later found out that he had only been granted a bridging visa A. He stated that he has tried to contact the migration agent but the agent has not returned his call. He requested the Tribunal give him more time to get another nomination from the agent. The Tribunal explained to the applicant that the provision requiring approval of the nomination has been interpreted by the Courts in such a way that only the nomination made at the time of the visa application can be relied on to satisfy the requirement in cl.187.233.[1] [1] see Kaur v MIBP [2017] FCCA 564 where it was held that the nomination relied on to satisfy cl.187.233 must be the nomination which had been made at the time of visa application. The applicant asked if he could have time to contact the representative and get information from him about the nomination. The Tribunal explained to the applicant that the evidence before it, which he appears to be well aware of, is that the relevant nomination has been refused and that in the circumstances, it would not be appropriate for the Tribunal to delay making its decision. The Tribunal has had regard to the evidence before it and acknowledges the difficulties stated by the applicant. The Tribunal has also had regard to applicant’s request for further time to get a nomination, however, for the reasons discussed with the applicant at the hearing, the Tribunal does not consider that there would be any merit in delaying the making of its decision, as a new nomination would not assist the applicant in satisfying the requirement in cl.187.233(3). For these reasons, the Tribunal has decided to proceed to a decision on the information before it.

Decision

Reasons for decision

The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.R. SkarosMemberATTACHMENT A187.233(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(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.

Ratio Decidendi

Legal Principle Established

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