Moutou (Migration)

Case [2018] AATA 909

Moutou (Migration) [2018] AATA 909 (10 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Veronique Sylvana Geraldine Joelle Moutou
Mr Guillano Allen Moutou
Mr Gael Julien Gerald Moutou
Miss Emma Jade Geraldine Moutou

CASE NUMBER:  1609352

DIBP REFERENCE(S):  BCC2015/2509771

MEMBER:Danica Buljan

DATE:10 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 10 January 2018 at 4:03pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nominated position – Hairdresser – Loss of a right to a hearing – s359A invitation – Failed to provide comments – Second invitation sent – Submission received – Granted previous visas before –No evidence of a labour agreement – Working as a hairdresser in regional Victoria – Compassionate grounds – Family well settled in Australia

LEGISLATION
Administrative Appeals Tribunal Act 1975 s2A
Migration Act 1958, ss 65, 351, 353, 359, 359A, 359C, 360, 363, 363A, 376
Migration Regulations 1994 rr 1.13A, 1.13B, 5.19 Schedule 2 cls 187.223, 187.233, 187.242, 187.311

CASES
Chen v Minister for Immigration and Border Protection [2016] FCCA 2351
Ghori v Minister for Immigration and Citizenship [2011] FCA 759
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
 M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333
Manna v Minister for Immigration and Citizenship [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
 Minister for Immigration and Multicultural Affairs v Sun (2005)
Singh v Minister for Immigration and Border Protection [2014] FCCA 1403
 Yang v Minister for Immigration and Citizenship [2010] FMCA 890

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 June 2016 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under section 65 of the Migration Act 1958 (‘the Act’).

  2. The applicants applied to the Department of Immigration for the visas on 29 August 2015. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

  3. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

  4. In the present case, the first-named applicant (‘the applicant’) is…

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Details
AGLC
Moutou (Migration) [2018] AATA 909
Case
[2018] AATA 909
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Moutou, who sought review of a decision to refuse his application for a Regional Employer Nomination (Permanent) visa (Subclass 187) under the Direct Entry stream. The nominated position was for a hairdresser. The primary decision maker had refused the visa application, and the Tribunal was tasked with determining whether the Minister had approved the relevant nomination for the purposes of clause 187.233 of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the nominated position met the requirements of clause 187.233 of the Regulations. This clause mandates that the nominated position must have been the subject of an approved nomination application, that the employer who made the nomination must be the one employing the applicant, and that the nomination must not have been withdrawn. Furthermore, the clause requires that there be no adverse information about the nominator or associated persons, that the position remains available, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal reasoned that the nomination linked to Mr Moutou's visa application, lodged by Barima Enterprise Pty Ltd, was not approved by the Department at first instance. The Tribunal had previously affirmed the decision to refuse the employer nomination application. Relying on the Full Federal Court's decision in *Singh's case*, the Tribunal held that a nomination in respect of the same position by the same employer cannot be used to satisfy the Schedule 2 criteria in clause 187.233 if the original nomination was refused. The Court in *Singh's case* clarified that clause 187.233 refers to a factual event, and if a nomination is refused, an applicant will not meet the criteria unless the refusal decision is set aside on review.

Consequently, the Tribunal concluded that the decision under review should be affirmed.

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 Minister has approved the relevant nomination for the purposes of clause 187.233 of the Regulations.Nomination of a position Specifically, for applicants in the Direct Entry stream clause 187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under subparagraph 5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under subregulation 5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application: subclause 187.233(1). In addition, this criterion also requires that:·The person who will employ the applicant is the person who made nomination: subclause 187.233(2);·The nomination has been approved and has not been subsequently withdrawn: subclauses 187.233(3) and (4);·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 regulations 1.13A and 1.13B); or it is reasonable to disregard any such information: subclause 187.233(4A)[18];·The position is still available to the applicant: subclause 187.233(5); and·The visa application was made no more than six months after the nomination of the position was approved: subclause 187.233(6).[18] As inserted by SLI 2015 No. 242 and applying to all new visa applications and visa applications not finally determined as at 14 December 2015. According to the primary decision record the applicant provided with the application for review, and as set out in the Tribunal section 359A invitations (dated 10 April 2017 and 22 December 2017), the nomination that was linked to the applicant’s visa application and lodged by Barima Enterprise Pty Ltd was not approved by the Department at first instance on 31 March 2016. In addition, the Tribunal affirmed the decision to refuse the employer nomination application lodged by Barima Enterprise Pty Ltd on 21 December 2017. Notably, in Singh’s case[19] the Full Federal Court considered the wording of clause 187.233 and held that a nomination in respect of the same position made by the same employer cannot be relied on to meet the Schedule 2 criteria set out in clause 187.223. In particular, the Court held that clause 187.233 refers to a factual event, namely, whether an employer nomination had been made, and about which the applicant made the required declaration in the visa application. [19] [2017] FCAFC 105 As a result, the Court held that this meant that, even if the applicant were able to obtain a further nomination for the same position from their employer, the new nomination would not be the one in relation to which the declaration was made. The Court also held that the ‘position’ referred to in this provision is a particular position that exists at the time at which the employer nomination is submitted for approval. As a consequence, the decision in Singh’s case[20] means that where the Department refuses a nomination, an applicant will not meet the requirements of clause 187.233 unless the original decision to refuse the nomination is set aside by the Tribunal on review. [20] [2017] FCAFC 105

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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