Patel (Migration) - [2022] AATA 4604

Patel (Migration) [2022] AATA 4604 (28 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Tejalben Sachinkumar Patel
Mr Sachinkumar Bhupendrabhai Patel
Ms Journey Sachinkumar Patel
REPRESENTATIVE:  Mr Amber Gupta (MARN: 0533773)
CASE NUMBER:  1904795
HOME AFFAIRS REFERENCE(S):          BCC2017/2261284
MEMBER:Jade Murphy
DATE:28 March 2022
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 28 March 2022 at 1:58pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Hairdresser – applicants did not provide any comments or response within the prescribed period – position to which the application relates is not the subject of an approved nomination –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233
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 26 June 2017. 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 Hairdresser (ANZSCO 391111).
The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations. The delegate found that the nomination referred to in cl.187.233(1) was refused by a delegate for the Minister on 25 January 2019. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.
On 11 March 2022, the Tribunal wrote to the applicants pursuant to s.359A of the Act and invited them to comment or respond to certain information that it considered at the time would, subject to their comments or response, be the reason or part of the reason, for affirming the delegate's decision under review.
The particulars of the information were that the application for approval of the nominated position made by Amardeep Singh Johal was refused by a delegate of the Minister of Home Affairs.…

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 Patel (Migration)

Details

AGLC: Patel (Migration) [2022] AATA 4604
Case: [2022] AATA 4604
Decision Date: 28 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Patel and other applicants seeking Regional Employer Nomination (Permanent) (Class RN) visas, specifically under the Subclass 187 Direct Entry stream for a hairdresser position. The core dispute revolved around whether the nominated position met the relevant legislative criteria, particularly concerning an approved nomination.

The Tribunal was required to determine if the position to which the visa application related was the subject of an approved nomination, as stipulated by clause 187.233 of the Migration Regulations. This clause, as applicable, mandates that the nominated position must be located in regional Australia, be the subject of an approved nomination application, and, for nominations made after 1 July 2017, identify the applicant in relation to the position. Further requirements include that the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be disregarded), the position must remain available, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal's reasoning focused on the fact that the nomination lodged by Amardeep Singh Johal was refused by a delegate on 25 January 2019. Although an application for review of this refusal was lodged, the Tribunal ultimately affirmed the delegate's decision to refuse the employer nomination on 11 March 2022. Consequently, there was no evidence before the Tribunal that the position was the subject of an approved nomination. As clause 187.233 was not met, and no claims were made regarding other visa streams, the Tribunal concluded that the primary applicant did not satisfy the criteria. This failure also meant that the secondary applicants did not meet their corresponding criteria under clause 187.311.

The Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) 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 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 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 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. The Tribunal notes the following:·On 25 January 2019, the nomination lodged by Amardeep Singh Johal, being the nomination referred to in paragraph 187.233(1), was refused by a delegate for the Minister;·Amardeep Singh Johal lodged an application for Tribunal review on 6 February 2019; and·On 11 March 2022, the Tribunal decided to affirm the delegate’s decision to refuse the employer nomination. There is no evidence before the Tribunal that the position to which the application relates is the subject of an approved nomination. 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. As the primary applicant does not met the criteria as set out in cl.187.233, it follows that the Tribunal finds the second named applicants do not meet the criteria as set out in cl.187.311.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 seeks to meet the requirements of:(i)subparagraph 5.19(4)(h)(ii); or(ii)subregulation 5.19(4) as in force before 1 July 2012; 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

As the primary applicant does not met the criteria as set out in cl.187.233, it follows that the Tribunal finds the second named applicants do not meet the criteria as set out in cl.187.311.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 seeks to meet the requirements of:(i)subparagraph 5.19(4)(h)(ii); or(ii)subregulation 5.19(4) as in force before 1 July 2012; 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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