Patel (Migration) - [2019] AATA 3222

Patel (Migration) [2019] AATA 3222 (6 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gaurangkumar Mansukbhai Patel
Mrs Dimpal Gaurangkumar Patel
CASE NUMBER:  1717477
HOME AFFAIRS REFERENCE(S):          BCC2016/3365504
MEMBER:Phoebe Dunn
DATE:6 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 06 August 2019 at 9:58am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Customer Service Manager – subject of an approved nomination – nomination application refused – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 Immigration and Border Protection on 27 July 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 11 October 2016. 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 (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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager (ANZSCO 149212).
The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination of the position in respect of the applicant lodged by V Brahmbhatt & N Rebello, was refused by a delegate of the Minister for Immigration and Border Protection on 16 June 2017, and as such there was no approved nomination.
On 6 July 2017, the nominator sought a review of that decision. On 9 May 2019, the Tribunal affirmed the decision not to approve the nomination.
On 10 May 2019 the Tribunal wrote to the applicants under s.359A of the Migration Act inviting the applicants to comment on or respond to information that the Tribunal considered would, subject to any comments or response, be the reason, or part of the reason for affirming the decisions under review. The particulars of the information was as follows:
“The application for approval of the nominated position made by V Brahmbhatt & N Rebello was refused by a delegate off the Minister for Immigration.…

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: Patel (Migration) [2019] AATA 3222
Case: [2019] AATA 3222
Decision Date: 6 August 2019

CaseChat Overview and Summary

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically the Temporary Residence Transition stream. The primary applicant sought review of a decision to refuse their visa application, which was predicated on the refusal of their sponsor's nomination application by the Department. The second applicant's claim was dependent on the first applicant satisfying the primary criteria for the visa.

The central legal issue before the Tribunal was whether the primary applicant had satisfied the requirements of clause 186.223 of the Migration Regulations 1994, which pertains to the approval of a nomination. This clause requires, among other things, that the nomination has been approved and has not been withdrawn, and that the visa application was made within six months of the nomination's approval. The Tribunal was also required to consider whether a subsequent nomination by a different organisation could satisfy the requirements, given the refusal of the initial nomination.

The Tribunal reasoned that as the Department had refused the sponsor's nomination application, and this decision had been affirmed on review, the primary applicant was not the subject of an approved nomination at the time of the Tribunal's decision. Consequently, clause 186.223(2) was not met. The Tribunal further held that a new nomination by a different employer could not satisfy the requirements of clause 186.223, as the visa application must relate to the position in respect of which the declaration under paragraph 1114B(3)(d) of Schedule 1 was made. Relying on the authority of *Hasan v MIBP* [2016] FCCA 1049, the Tribunal concluded that any delay to await a new nomination would be futile. As the first applicant did not meet the primary criteria, the second applicant, as a member of the family unit, also failed to satisfy the requirements of clause 186.311.

The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) 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 there is an approved nomination.Nomination of a position Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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. In addition, this criterion also requires that:·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 r.1.13A and r.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 nomination application of the first named applicant’s sponsor was refused by the Department and that decision has been affirmed by the Tribunal on review. Accordingly, at the time of this decision the first named applicant is not the subject of an approved nomination. Therefore, cl.186.223(2) is not met. The Tribunal has considered the written submissions received on 15 May 2019 and on 12 July 2019, as well as the oral evidence at the hearing. In relation to the matters set out in paragraphs 9(a) to (d) above, the Tribunal notes that these are not factors that the Tribunal can take into consideration when determining whether there is a valid nomination under cl.186.223(2). In relation to the request for a delay on which to make a decision on the basis that the first named applicant is likely to be nominated by another organisation shortly, the Tribunal notes that on current authority it is a requirement under cl.186.223 that the position to which the visa application relates is the position in relation to which the required declaration is made under paragraph 1114B(3)(d) of Schedule 1, and this requirement cannot be satisfied by a later nomination made by a different employer as this new nomination would not be the one to which the Schedule 1 declaration was made[1]. As such the Tribunal considers that any such delay would be futile.[1] Hasan v MIBP [2016] FCCA 1049 Notwithstanding the above, the Tribunal wrote to the applicants on 25 July 2019 granting until 2 August 2019 to make further submissions on this matter, after which time the Tribunal will be making a decision on the review. As at the date of this decision, the Tribunal has not received any further submissions from the applicants. The Tribunal is not minded to delay making a decision indefinitely.

Decision

Reasons for decision

The only basis of the application of the second named applicant is that they are a member of the family unit of the person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.186.311(a). As the first named applicant does not meet the primary criteria and has not been granted a Subclass 186 visa, the decision to refuse the application of the second named applicant must also be affirmed because she does not satisfy cl.186.311.DECISION The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.Phoebe DunnMemberATTACHMENT A186.223(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 subregulation 5.19(3); and(b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and(c)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 Minister has approved the nomination.(3) The nomination has not subsequently been withdrawn.(3A) 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.(4) The position is still available to the applicant.(5) 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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