Patel (Migration) - [2018] AATA 2055

Patel (Migration) [2018] AATA 2055 (18 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Riteshkumar Keshavlal Patel
Mrs Yamini Riteshkumar Patel
Mr Monil Patel
CASE NUMBER:  1725835
DIBP REFERENCE(S):  BCC2016/1320633
MEMBER:Peter Emmerton
DATE:18 April 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:
·cl.187.233 of Schedule 2 to the Regulations; and

Statement made on 18 April 2018 at 3:04pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) –Subclass 187 – Direct Entry Nomination stream – Restaurant Manager ANZSCO 141111 – Nomination approved – cl 187.233 – Decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, 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 Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 31 March 2016. 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 (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.
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 Restaurant Manager ANZSCO 141111. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.
The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination was not approved.
The applicants appeared before the Tribunal on 18 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr B Patel, who gave evidence on behalf of Shubh Labh Pty Ltd ATF B&M Family Trust, the nominating entity and Mr Laxman Mehra, the nominating entity’s accountant. The Hearing was combined with the hearing for MRT file ref.1718057, the nominator. The Tribunal found all those presenting evidence to be credible and appeared to answer questions in an open and honest manner without obfuscation.
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: Patel (Migration) [2018] AATA 2055
Case: [2018] AATA 2055
Decision Date: 18 April 2018

CaseChat Overview and Summary

This matter concerned an appeal before the Tribunal regarding a Subclass 187 Regional Employer Nomination (Permanent) visa, Direct Entry stream. The applicants sought review of a decision concerning the approval of a nomination for the position of Restaurant Manager.

The primary legal issue before the Tribunal was whether the nomination for the position had been approved, as required by clause 187.233 of the Migration Regulations 1994. This clause sets out several criteria that must be met, including that the nominator is the prospective employer, the nomination has been approved and not withdrawn, there is no adverse information, the position remains available, and the visa application was made within six months of the nomination approval.

The Tribunal considered the evidence, including the history of the nomination application. It noted that the employer's nomination application was initially refused on 27 July 2017. However, on 18 April 2018, the Tribunal set aside that refusal and substituted a decision approving the appointment for the position of Restaurant Manager. The Tribunal was satisfied that the approved position was the same as that which was the subject of the relevant nomination application and the visa application declaration. It also found that the nominator was the prospective employer and that the visa applicant now met the requirements of clause 187.233(3) in light of the Tribunal's approval of the appointment.

Consequently, the Tribunal found that the visa applicant satisfied the requirements of clause 187.233. The Tribunal therefore remitted the visa applications for reconsideration by the Minister, with a direction that the first applicant meets the criteria specified in clause 187.233 for a Subclass 187 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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the nomination has been approved. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in doing so, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.Nomination of a position For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii). In addition, this criterion also requires that:·the person who will employ the applicant is the person who made 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 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. On 31 March 2016 the sponsoring employer lodged a nomination for a residence visa under the Regional Employer Nomination (Permanent) (Class RN 187) visa in favour of the visa applicant. On 27 July 2017 the employer’s nomination application was refused. On 18 April 2018, the Tribunal set the Department’s decision aside and substituted a decision approving the appointment for the position of Restaurant Manager.[1] Based on evidence provided in that application, the Tribunal is satisfied the approved position is the same as the one that was the subject of the relevant r.5.19(4)(h)(ii) nomination application. The Tribunal is also satisfied the position is the same as that in the visa application declaration. Therefore cl.187.233(1) is met.[1] See MRT decision file ref.1718057 The Tribunal relies on its findings in the nomination application to find the person who will employ the applicant is the person who was the nominator in the application for approval. Therefore cl. 187.233(2) is met. In light of the Tribunal’s approval of the appointment under r.5.19(4), the Tribunal finds that the visa applicant now meets the requirements of cl.187.233(3).

Decision

Reasons for decision

The Tribunal therefore finds the visa applicant satisfies the requirements specified in cl.187.233. 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 applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:·cl.187.233 of Schedule 2 to the Regulations.Peter EmmertonMember

Ratio Decidendi

Legal Principle Established

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