Li (Migration) - [2021] AATA 541

Li (Migration) [2021] AATA 541 (2 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Yanshen Li
Miss Siyu Deng
CASE NUMBER:  1917176
HOME AFFAIRS REFERENCE(S):          BCC2017/3115054
MEMBER:Alison Mercer
DATE:2 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 2 March 2021 at 2:47pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – related nomination applicant refused and no application for review – currently working for new employer – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)
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 Home Affairs 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 29 August 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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Café or Restaurant Manager.
The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, which required that he was the subject of an approved nomination by his Australian employer. The delegate found that the nomination by the applicant’s employer, Nick’s Corner Pty Ltd, was refused on 9 May 2019, and therefore the applicant did not meet cl.187.233(3) and did not meet cl.187.233 as a whole. The delegate further found that the applicant had not made any claims against any other stream except the Direct Entry stream. The delegate also refused to grant the second named applicant (the applicant’s partner) a subclass 187 visa as she did not meet the secondary visa criteria in cl.187.311 to be a member of the family unit of a person who met the primary visa criteria, and there was no evidence that she met the primary visa criteria in her own right.

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 Li (Migration)

Details

AGLC: Li (Migration) [2021] AATA 541
Case: [2021] AATA 541
Decision Date: 2 March 2021

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Li, against the refusal of a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), direct entry stream. The applicant sought to have the decision of the delegate reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 187.233 of the Migration Regulations 1994, which pertains to the nomination of a position for the direct entry stream. Specifically, the Tribunal had to determine if the position to which the visa application related was the subject of an approved nomination that had not been withdrawn, and if the applicant had made the required declaration in relation to that specific nomination.

The Tribunal reasoned that the delegate's decision record indicated that the nomination by Nick’s Corner Pty Ltd was refused on 9 May 2019, and no application for review of this refusal was made. Consequently, there was no evidence before the Tribunal of an approved nomination by that, or any other, employer. The Tribunal noted that clause 187.233 requires the position to be the one in relation to which a declaration was made in the visa application. Citing case law, the Tribunal held that a subsequent nomination, even for the same position by the same employer, would not satisfy this criterion as it would not be the nomination in relation to which the original declaration was made.

The Tribunal affirmed the decision not to grant the applicant a Subclass 187 visa, finding that the applicant did not meet the requirements of clause 187.233 due to the absence of an approved nomination in relation to which the visa application declaration was made. The Tribunal also noted that the second applicant, presumably a family member, did not satisfy the secondary criteria and there was no evidence she met the primary criteria in her own right.

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 EVIDENCENomination 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 person who will employ the applicant is the person who made 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. As noted above, the delegate’s decision record (a copy of which was provided to the Tribunal by the applicant), the nomination of him by Nick’s Corner Pty Ltd, was refused by the Department on 9 May 2019. As discussed with the applicant, Nick’s Corner Pty Ltd did not seek review of that refusal decision with the Tribunal. Therefore, there is no evidence before the Tribunal that the applicant is the subject of an approved nomination by that (or any other) employer. The Tribunal further notes that it is a requirement for the Direct Entry stream (cl.187.233) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2] [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).[2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186) - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018). This was the view taken in Singh v MIBP [2017] FCAFC 105[3]. The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.[4] [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88]. [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

Decision

Reasons for decision

The Tribunal must also affirm the decision to refuse to grant a subclass 187 visa to the second named applicant, as it finds that she does not satisfy the secondary visa criteria to be a member of the family unit of a person who met the primary visa criteria, and there is no evidence to suggest that she meets the primary visa criteria in her own right.DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.Alison MercerMemberATTACHMENT 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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