Matharu (Migration) - [2023] AATA 723

Matharu (Migration) [2023] AATA 723 (3 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rohit Matharu
REPRESENTATIVE:  Mr Vikas Jain
CASE NUMBER:  1916843
HOME AFFAIRS REFERENCE(S):          BCC2017/3068219
MEMBER:Terrence Baxter
DATE:3 January 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:
·cl 187.233(3) of Schedule 2 to the Regulations.

Statement made on 03 January 2023 at 9:26am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Store Manager – subject of an approved nomination – decision under review remitted

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 (Cth) (the Act).
The applicant applied for the visa on 25 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Store Manager for Lainraj Pty Ltd ATF Khanpuria Retail Trust (the nominator).
The delegate refused to grant the visa on 20 June 2019 because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations which required that he be the subject of an approved nomination. The delegate found that the nomination of the nominator was refused on 21 May 2019 and that accordingly, the applicant did not meet the requirements of cl 187.233(3) and did not meet the requirements of cl 187.233 as a whole.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 26 June 2019.
The applicant appeared before the Tribunal on 21 September 2022 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the relevant nomination application.
The applicant was represented in relation to the review by his registered migration agent, Mr Vikas Jain by Wickham Lawyers. The representative attended the…

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 723
Decision Date: 3 January 2023

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for a Retail Store Manager. The applicant's case was before the Tribunal for review of a decision concerning an approved nomination.

The primary legal issue before the Tribunal was whether the nomination for the applicant's position met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause mandates that the nominated position be located in regional Australia, be the subject of an approved nomination, and, for nominations made on or after 1 July 2017, identify the applicant in relation to the position. Further requirements include that the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to the Department about the nominator or associated persons (or such information must be reasonably disregarded), the position must remain available, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal found that the nomination application was initially refused but subsequently reviewed and approved by the Tribunal on 3 January 2023, thereby satisfying clause 187.233(3). Given this finding, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the applicant be considered to meet criterion cl 187.233(3).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:·cl 187.233(3) of Schedule 2 to the Regulations.Terrence BaxterMemberATTACHMENT 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

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether there is 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 of the Regulations); 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. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Retail Store Manager approved, with the applicant as nominee, on 25 August 2017. The nomination application was refused on 21 May 2019 and the nominator sought review of that decision with the Tribunal on 31 May 2019. On 3 January 2023, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by the nominator. Therefore, cl 187.233(3) is met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:·cl 187.233(3) of Schedule 2 to the Regulations.Terrence BaxterMemberATTACHMENT 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.