Parungao (Migration) - [2024] AATA 527

Parungao (Migration) [2024] AATA 527 (12 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Jeizzel Aprille Acio Parungao
Mr Abraham Bungcayao Parungao
Mr Claude James Simeone Acio
Miss Asteria Milan Acio Parungao
REPRESENTATIVE:  Mr Benjamin Kramer (MARN: 1386609)
CASE NUMBER:  2103189
HOME AFFAIRS REFERENCE(S):          BCC2019/5798408
MEMBER:Jade Murphy
DATE:12 March 2024
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 12 March 2024 at 3:49pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Hair or Beauty Salon Manager – no approved nomination – nominating business deregistered – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13
CASES

Singh v MIBP [2017] FCAFC 67

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 15 November 2019. 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 of Hair or Beauty Salon Manager (ANZSCO 142114).
The delegate refused to grant the visas because the applicant did not meet cl 187.233(1) of Schedule 2 to the Regulations because the nomination to which the application relates had not been approved by a delegate of the Minister.
On 21 February 2024, the Tribunal wrote to the applicant pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.
The particulars of the information were:
·On 15 November 2019, Your Trademark Pty Ltd (“the nominator”) applied to the Department of Home Affairs (“the Department”) to nominate the applicant for the position of Hair or Beauty Salon Manager (ANZSCO 142114).
·On 30 April 2020, the application for approval of the nominated position made by the nominator was…

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 Parungao (Migration)

Details

AGLC: Parungao (Migration) [2024] AATA 527
Case: [2024] AATA 527
Decision Date: 12 March 2024

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the Direct Entry stream. The applicant sought to have a decision affirmed by the Administrative Appeals Tribunal (AAT), presided over by Member Jade Murphy, which had refused the visa. The core of the dispute revolved around the validity and approval of the nomination for the applicant's proposed position as a Hair or Beauty Salon Manager.

The primary legal issue before the Tribunal was whether the applicant met the criteria stipulated in clause 187.233 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the position to which the visa application related was the subject of an approved nomination, if the nominating business was still a viable entity, and if the applicant's employer was the nominator. The Tribunal also considered whether the nomination had been approved and not subsequently withdrawn, whether there was any adverse information concerning the nominator, if the position remained available, and if the visa application was lodged within the prescribed timeframe after nomination approval.

The Tribunal reasoned that the applicant's employer's nomination application had been refused by the Department, and a subsequent review application was outside the Tribunal's jurisdiction. Crucially, the information before the Tribunal indicated that the nomination application had not been approved. Consequently, the Tribunal concluded that the applicant failed to satisfy the requirements of cl.187.233(1) of Schedule 2 to the Regulations. As the applicant had only sought to meet the criteria for the Direct Entry stream and had not met those requirements, the decision under review was affirmed.

The Tribunal affirmed the decision not to grant the applicant the Regional Employer Nomination (Permanent) (Class RN) 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 CLAIMS AND EVIDENCE The issue in the present case is whether the position to which the application relates is 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. As explained to the applicant in the letter written pursuant to s.359A of the Act, the applicant’s employer’s nomination was refused by the Department and although a review application was lodged with the Tribunal, the Tribunal has determined it does not have jurisdiction to consider it. The applicant failed to provide any response to, or comment on, this information. The information before the Tribunal is that the nomination application for the position to which the applicant’s visa application relates has not been approved. As a result, it follows that the applicant does not meet the criteria in cl.187.233(1) of Schedule 2 to the Regulations. Therefore, cl 187.233 is not met. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas. Jade MurphyMemberATTACHMENT A187.233(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(12); 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.

Decision

Reasons for decision

The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas. Jade MurphyMemberATTACHMENT A187.233(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(12); 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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