Patel (Migration)

[2021] AATA 98

Patel (Migration) [2021] AATA 98 (15 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dixitkumar Girishbhai Patel
Mrs Krutikaben Dixitkumar Patel
Master Yug Dixitkumar Patel

CASE NUMBER:  1813105

HOME AFFAIRS REFERENCE(S):          BCC2017/4323036

MEMBER:Marten Kennedy

DATE:15 January 2021

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.187.223 of Schedule 2 to the Regulations.

Statement made on 15 January 2021 at 9:36am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Temporary Residence Transition stream – position of Customer Service Manager – nomination approved upon review – position located in regional Australia – metropolitan Perth no longer classified – application of Migration Regulation amendments – decision under review remitted     

LEGISLATION

Migration Act 1958, s 65
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994, Schedule 2, cls 187.111, 187.233; Schedule 13; rr 1.13, 5.19

STATEMENT OF DECISION AND REASONS

1. 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 (the Act).

2. The applicants applied for the visas on 17 November 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. 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.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations as a consequence of the Department’s refusal to approve the applicant’s employer’s corresponding nomination application.

6. In matter 1808969 Bajaria Global Pty Ltd, I decided to set aside the decision to refuse to approve the nomination and substitute a decision approving the nomination.  My reasons for doing so are set out in a decision record in that matter.

7. Upon approving the corresponding application for approval of a nomination however, I identified a different issue pertaining to the applicant’s satisfaction of cl.187.223 of Schedule 2 to the Regulations.

8. On 19 November 2020 I arranged for the Registry to write to the applicant to set out my concerns and raise a new issue to be addressed in the review.  It is convenient to set out the relevant content of that letter:

   …

   In order for the visas to be granted, the corresponding nomination of a position by Mr Patel’s employer, Bajaria Global Pty Ltd, must be approved. You may be aware that Bajaria Global requested review of the decision to refuse to approve the nominated position.

   Very recently, the Tribunal completed the review of Bajaria Global’s application for review and decided to approve the nomination. That decision will shortly be communicated to your employer.

   Ordinarily, when the Tribunal approves the nomination of a position, it will send the corresponding visa applications back to the Department for reconsideration, with a direction that the particular visa criterion requiring an approved position has been satisfied.

   In your case, as the Tribunal reviewed the visa refusal, it identified another problem with the application relating to that same visa criterion. In addition to having the nomination approved, the relevant visa criterion (cl.187.223 of Schedule 2 to the Regulation in force at the time you applied for the visas) requires the Tribunal to be satisfied that the position to which the application relates is located in regional Australia. The term ‘regional Australia’ is addressed by legislative instrument.

   Unfortunately, it appears that in your case on the day you lodged your visa application, a new legislative instrument (IMMI 17/059) came into effect identifying which parts of Australia will be considered ‘regional Australia’. Essentially, from the date of your visa application (17 November 2017), metropolitan Perth was no longer ‘regional Australia’.

   The Tribunal notes your employment is at Osborne Park in Western Australia, which forms part of metropolitan Perth.

   It is not legally open to the Tribunal to apply a definition of regional Australia inconsistent with the legislative instrument.

   It appears therefore that despite the Tribunal approving the nomination associated with your visa application, the Tribunal may be bound to refuse your visa applications because the position to which your application relates is not located in ‘regional Australia’.

   The Tribunal is obliged to invite you to attend a hearing of the Tribunal in circumstances where it is minded to affirm the decision under review. If, as in your case, the Tribunal may refuse the visa for different reasons to the Department, it is important that you are informed of this new issue. This is why the presiding member has asked that I write to you. If you or those advising you have a different view of the facts, law and applicability of IMMI 17/059 to your circumstances, please set out that position in writing and provide it to the Tribunal as soon as possible.

9. A hearing was conducted in the review on 17 December 2020.  In advance of the hearing, the applicant, through his migration representative, advanced detailed written submissions addressing the matter I had raised.

   Nomination of a position

10. Clause 187.223 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 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 located in regional Australia  (my emphasis)

    ·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.

11. As a consequence of my decision in matter 1808969 Bajaria Global Pty Ltd I am satisfied that the first and fifth matters summarised above (cl.187.223(1),(2) and (6)) are satisfied).

12. I am further satisfied that the position is still available to the applicant, and the nomination has not been withdrawn, noting that the applicant continued to work in the position at the time of the hearing and was supported in the matter by his employer (cl.187.223(3) and (5) are satisfied).

13. There is no evidence before the Tribunal of an adverse information known to Immigration about the nominating employer (cl.187.223(3A) is satisfied).

14. The remaining issue therefore is as is indicated in my letter of 19 November 2020.

15. It is not in dispute that the position is located in Osborne Park, Western Australia. Postcodes are typically used for the purpose of discriminating between localities in Australia for the purpose of defining regional Australia in legislative instruments. The post code for Osborne Park, WA is 6017.  Osborn Park is essentially well within metropolitan Perth.

    Is Osborne Park in ‘regional Australia’ at the time of my decision?

16. Clause 187.223 is to be satisfied at the time of decision. The term ‘regional Australia’ used in cl.187.223 is defined at cl.187.111 of Schedule 2 to the Regulations.

17. At the time of application, cl.187.111 defined ‘regional Australia’ as having the meaning given in r.5.19(7) of the Regulations.  However, the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (the “amending Regulation”) changed the text of cl.187.111 by omitting the reference to r.5.19(7) and substituting it with a reference to r.5.19(16): item 153.

18. I have formed the view that the adjustment to cl.187.111 where the reference to r.5.19(7) is replaced with a reference to r.5.19(16) applies to this visa application, notwithstanding that the date of application predates the commencement day of the amending Regulation.

19. The application of provisions of the Migration Regulations are addressed at Schedule 13 to the Regulations. The amending Regulation inserted a range of application provisions into Schedule 13 addressing when various amendments provided for in the amending Regulation were to apply.

20. The amendment to cl.187.111 is not mentioned in these application provisions.  By contrast, the amendments to r.5.19 for the purpose of applications for approval of nominations (my emphasis) and amendments to cl.187.223 expressly do not apply to nomination applications or visa applications made before the commencement date: see item 6705 of Schedule 13 to the Regulations.  I have reproduced item 6705 of Schedule 13 to the regulations in the attachment to this decision.    

21. In the absence of any application provision inserted into Schedule 13 of the Regulations that preserves the text of cl.187.111 as it was in force before the commencement day, cl.187.111 points to the definition of regional Australia provided by r.5.19(16) of the regulations.

22. Legislative Instrument IMMI 17/059 was not made pursuant to r.5.19(16) (it was made pursuant to r.5.19(7).  The terms of item 6705 of Schedule 13 to the Regulations will operate so that IMMI 17/059 applies to applications for approval of nominations under r.5.19, but not for the purpose of the definition of regional Australia referred to in cl.187.111 in relation to the corresponding visa application, which must be by reference to r.5.19(16). I suspect that this is probably unintentional, but this is the unescapable effect of the legislative drafting.

23. I have concluded therefore on further examination of the legislative provisions and provisions pertaining to their application that as IMMI 17/059 was not made under r.5.19(16), it does not apply to this matter.

24. Legislative instrument IMMI 18/037 specifies parts of Australia for the definition of ‘regional Australia’ in r 5.19(16) for the purpose of r.5.19(16). It is the first such legislative instrument to do so, and is dated the same as the commencement of the amending Regulations.  However, the application provisions of the legislative instrument itself at Schedule 3 state that it applies only to applications for a subclass 187 visa made on or after 18 March 2018 if the related application for approval of the nomination is made on or after that date. 

25. It follows that I have concluded that IMMI 18/037 does not apply to this matter either.

26. I therefore fall into a lacuna of any operative specification of parts of Australia for the definition of regional Australia in r.5.19(16) and cl.187.111 for a visa application where the corresponding application for approval of a nomination was made before 18 March 2018.

27. In this situation, I consider the only practical approach to adopt is to take note of the fact that the corresponding application for approval of the nomination was made on 21 April 2017.  At this time Osborn Park was defined to be in Regional Australia in IMMI 16/ 045.  It is unusual that IMMI 17/059 did not contain a savings provision in respect of visa applications supported by corresponding applications for approval of nominations that had already been lodged at the date of its commencement (see for comparison the application provisions of IMMI 18/037). 

28. Furthermore, the applicant has provided me with submissions and supporting documentation demonstrating that the removal of metropolitan Perth from the definition of regional Australia brought about by IMMI 17/059 without any savings provisions was a matter of some controversy.  I note that it is asserted in a Migration Institute of Australia Notice (No.6 of 15 January 2018) that the Department had stated that IMMI 17/059 would not be applied retrospectively, although such representations were not officially confirmed and the Tribunal had questioned such representations that appeared to be inconsistent with the legislative instrument.

29. I have also had regard to the approach of my colleagues in different albeit related contexts in Chris Talihmanidis (Migration) [2018]AATA 1922, Settlers Pty Ltd  (Migration) [2019] AATA 2804, WA Blue Sky Inc (Migration) [2020] AATA 331 and Nulsen Haven Association (Inc) (Migration) [2020] AATA 2897. I note the approach in Talihmanidis, WA Blue Sky Inc and Nulsen Haven  similarly seek to resolve the dilemma presented by  the absence of any operative specification of parts of Australia for the definition of regional Australia in r.5.19(16)”by resorting to the specification that applied when the application for approval of a nomination was lodged.  I have adopted the same approach albeit in the context of a corresponding visa application, and am reassured to note that this appears to be consistent with subsequent examples of application provisions in legislative instruments made by the Minister, the application provisions inserted into Schedule 13 for the purposes of applications for approval of nominations, and public statements attributed to the Department.

30. In these circumstances and for these reasons I find that the applicant satisfies the requirements of cl. 187.223 of Schedule 2 to the Regulations, and will remit the visa applications to the Department on that basis.

    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.187.223 of Schedule 2 to the Regulations.

    Marten Kennedy

    
    

    Member

    ATTACHMENT A

    MIGRATION REGULATIONS 1999

    Schedule 2

    Subclass 187 Regional Sponsored Migration Scheme…

    187.111In this Part:

    application for approval means an application under regulation 5.19 for approval of the nomination of a position.
    occupation means the occupation that would be carried out by a person who is employed in a position.
    regional Australia has the meaning given by subregulation 5.19(16).

    …

    187.223(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 1114C (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 to which the application relates is located in regional Australia.

    (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.

    Schedule 13

    6705Application provisions in relation to nominations under regulation 5.19

    (1)Despite the amendments of regulation 5.19 made by the amending regulations, that regulation (including any instruments made under it), as in force immediately before the commencement of Schedule 1 to the amending regulations, continues to apply in relation to an application for approval of the nomination of a position made before the commencement day.

    (2) Despite the amendments of paragraph 1114B(3)(d) of Schedule 1 made by the amending regulations, that paragraph, as in force immediately before the commencement of Schedule 1 to the amending regulations, continues to apply in relation to a position nominated, before the commencement day, in accordance with a labour agreement that is in effect, by an employer that is a party to the labour agreement.

    (3) Despite the amendments of clauses 186.223, 186.233, 187.223 and 187.233 of Schedule 2 made by the amending regulations, those clauses, as in force immediately before the commencement of Schedule 1 to the amending regulations, continue to apply in relation to a position nominated in an application made under regulation 5.19 before the commencement day.

    (4) Despite the amendments of clause 186.242 of Schedule 2 made by the amending regulations, that clause, as in force immediately before the commencement of Schedule 1 to the amending regulations, continues to apply in relation to a position nominated, before the commencement day, in accordance with a labour agreement that is in effect, by an employer that is a party to the labour agreement.

    (5) Despite the amendments of clauses 186.221, 186.241, 186.243, 187.221 and 187.234 of Schedule 2 made by the amending regulations, those clauses, as in force immediately before the commencement of Schedule 1 to the amending regulations, continue to apply in relation to a visa application made before the commencement day.

    (6) Clauses 186.225 and 187.225 of Schedule 2, as inserted by the amending regulations, apply in relation to a visa application made on or after the commencement day.