Panchal (Migration) - [2022] AATA 3601

Panchal (Migration) [2022] AATA 3601 (19 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kamleshkumar Prahladbhai Panchal
CASE NUMBER:  1909048
HOME AFFAIRS REFERENCE(S):          BCC2018/2368297
MEMBER:Alison Mercer
DATE:19 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 19 October 2022 at 5:41pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – ICT business consultant – subject of approved position nomination – related nomination application refused, company deregistered and no jurisdiction to review – legislative amendments mean requirements cannot be satisfied by new nomination – no response to tribunal’s invitation to comment and decision made on available evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 1, para 1114B(3)(d), Schedule 2, cl 186.223(2)
CASES
Hasan v MIBP [2016] FCCA 1049
Hasran v MIAC (2010) 183 FCR 413
Kaur v MIBP [2017] FCCA 564
Khanom v MIBP [2016] FCCA 3259
MIAC v Li (2013) 249 CLR 332
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 on 4 April 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 1 June 2018. At the time of application, Class EN contained one subclass: subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of ICT Business Consultant.
The delegate refused to grant the visa because the applicant did not meet cl 186.233 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 of the applicant by his employer, AVMCO Pty Ltd, had been refused on 1 March 2019. The delegate therefore found that the applicant did not meet the criteria for a subclass 186 in the Direct Entry stream, and had not claimed to meet the criteria for any other stream.
The Tribunal received a review application from 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

AGLC: Panchal (Migration) [2022] AATA 3601
Case: [2022] AATA 3601
Decision Date: 19 October 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by Mr. Panchal against the refusal of his Employer Nomination (Permanent) (Class EN) visa, subclass 186, under the direct entry stream. The dispute centred on the applicant's eligibility for the visa, specifically concerning the requirement for an approved position nomination. The original nomination lodged by his employer, AVMCO Pty Ltd, was refused, and the Tribunal found it had no jurisdiction to review that refusal because the company had been deregistered.

The primary legal issue before the Tribunal was whether the applicant could satisfy the requirements of clause 186.233 of the Migration Regulations 1994, which mandates that the position to which the visa application relates must be the subject of an approved nomination. This clause requires the nomination to have been approved and not subsequently withdrawn, among other conditions. The Tribunal also had to consider the effect of legislative amendments and existing case law on the ability to rely on a new nomination or a nomination made in relation to a different visa application.

The Tribunal reasoned that the applicant could not meet the requirements of clause 186.233 because the original nomination had been refused and the nominating company deregistered, meaning the nomination could not be approved or relied upon. The Tribunal noted that current authority, including cases such as *Hasan v MIBP* and *Singh v MIBP*, indicates that a new nomination, even by the same employer for the same position, would not satisfy the criterion. This is because the visa application declaration refers to a specific, existing nomination at the time of the visa application, and a subsequent nomination would not be the one in relation to which that declaration was made. The Tribunal concluded that the applicant was not the subject of an approved nomination by his original employer, rendering the visa requirements unsatisfied.

Consequently, the Tribunal affirmed the decision not to grant Mr. Panchal the Employer Nomination (Permanent) (Class EN) visa.

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 LAW, CLAIMS AND EVIDENCENomination of a position Clause 186.233 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. 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. It is not disputed that the nomination of the applicant lodged by his employer, AVMCO Pty Ltd, was refused, and that the Tribunal (differently constituted) found that it had no jurisdiction to review that decision on 2 March 2022 as the company had been deregistered on 9 January 2022. It is a requirement for the Direct Entry stream (cl.186.233) 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, 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.187.233(1)(c), 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] (which concerned an almost identically worded criterion for a subclass 187 visa). 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

To be clear, the Tribunal considers both the certificate and the material it covers to be legally irrelevant to the outcome of this case, which turns solely on the fact that the applicant is not the subject of an approved nomination by his original employer.DECISION The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.Alison MercerMemberATTACHMENT A186.233(1) The position to which the application relates is the position:(a)nominated in an application for approval that:(i)identifies the applicant in relation to the position; and(ii)is made in relation to a visa in a Direct Entry stream; and(iii)seeks to meet the requirements of subregulation 5.19(10); and(b)in relation to which the declaration mentioned in paragraph 1114B(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 not more than 6 months after the Minister approved the nomination.

Ratio Decidendi

Legal Principle Established

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