Matharu (Migration) - [2023] AATA 3259

Matharu (Migration) [2023] AATA 3259 (3 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Avtar Kaur Matharu
Master Jasdave Singh Dhaliwal
REPRESENTATIVE:  Mr Gursharan Singh (MARN: 0640600)
CASE NUMBER:  1922704
HOME AFFAIRS REFERENCE(S):          BCC2018/968266
MEMBER:Stephen Witts
DATE:3 October 2023
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 03 October 2023 at 12:59pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry scheme – office manager – subject of approved position nomination – related nomination application refused – member of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.223
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 (Cth) (the Act).
The applicants applied for the visas on 28 February 2018. 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 (Cth) (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 the Direct Entry stream, to work in the nominated position.
The delegate refused to grant the visas because the applicants did not meet cl 187.233 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicants were the subject of an approved nomination.
The applicants appeared before the Tribunal on 3 October 2023 to give evidence and present arguments.
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 applicants are the subject of an approved nomination.
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 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…

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.

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Details

Case: [2023] AATA 3259
Decision Date: 3 October 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of the applicants, who sought review of a decision to refuse them Regional Employer Nomination (Permanent) (Class RN) visas, subclass 187, under the direct entry scheme. The primary dispute concerned whether the applicants were the subject of an approved nomination for the position of office manager.

The Tribunal was required to determine whether the applicants met the criteria for an approved nomination, specifically whether the position was nominated in accordance with the relevant regulations, if the nominator was the intended employer, if the nomination had been approved and not withdrawn, if there was no adverse information known to Immigration, if the position remained available, and if the visa application was lodged within six months of the nomination approval.

The Tribunal noted that the nomination application, lodged on 28 February 2018, was refused by the Minister on 2 July 2019. Despite the primary applicant's assertion that she had been working as an office manager since February 2018 and was aware of potential issues with the nominator's status, the Tribunal found it uncontested that the nominator had been refused and, consequently, the applicant was not the subject of an approved nomination. As the primary applicant did not meet this essential criterion, the Tribunal concluded that the secondary applicant also failed to meet the visa requirements.

The Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

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 applicants are the subject of an approved nomination.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 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 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 reg 1.13A and reg 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. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision recorded by the applicants. In this decision it was stated that an application for a nomination on behalf of the primary applicant was lodged on 28 February 2018 on the basis that she has been nominated for the position of office manager under the direct entry stream. According to the delegate on 2 July 2019 the nomination lodged by Psingh Services Pty Ltd on behalf of the primary applicant/nominee was refused by the Minister. Therefore, the delegate made a decision that the applicants were not the subject of an approved nomination. At the hearing the Tribunal had a discussion with the primary applicant regarding the application. The primary applicant stated that she started work with this employer in February 2018 in Tamworth and that she still working for them as an office manager and that the business is a cleaning company. She stated that she was aware that there may have been a problem with her nominator’s RCV status and that it may not have given all the information required to the Department but stated that she has given a lot of time to Australia and her son has been born in Australia. The Tribunal has considered the evidence carefully noting that it is not contested that the nominator has been refused a visa and that the applicant therefore is not the subject of an approved nomination. The Tribunal therefore finds that the applicant is not the subject of an approved nomination.

Decision

Reasons for decision

The Tribunal also finds that as the primary applicant does not meet the criteria for the grant of the visa that the secondary applicant also does not meet the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas. Stephen WittsMemberATTACHMENT 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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