Patel (Migration) - [2020] AATA 4063

Patel (Migration) [2020] AATA 4063 (1 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Pamilabahen Rameshbhai Patel
CASE NUMBER:  1836622
HOME AFFAIRS REFERENCE(S):          BCC2017/1466865
MEMBER:Alison Mercer
DATE:1 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 1 September 2020 at 2:09pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Cook – nomination refused–not the subject of an approved nomination – factors beyond an applicant’s control – no discretion to waive or overlook the requirements of cl.186.223– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 351, 360
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 186.223
CASES
Hasan v Minister for Border Protection [2016] FCCA 1049
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Singh v MIBP [2017] FCAFC 105
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 on 26 November 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 22 April 2017. 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Cook.
The delegate refused to grant the visa because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, which required that she was the subject of an approved nomination by her Australian employer. The delegate noted that the applicant’s employer, T & A Hakim as trustee for the T & A Hakim Unit Trust, had its nomination of the applicant refused on 16 October 2018.
The Tribunal received a review application from the applicant on 13 December 2018, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Amber Gupta, as her representative and authorised recipient for correspondence. The applicant also provided a copy of her employment contract with her nominating employer and a letter of reference from that employer, dated 24 February 2017. She subsequently provided her tax return…

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) [2020] AATA 4063
Case: [2020] AATA 4063
Decision Date: 1 September 2020

CaseChat Overview and Summary

This matter concerned an appeal by Ms. Patel against the refusal of her Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 visa. The core of the dispute revolved around the applicant's failure to meet the nomination requirements stipulated in clause 186.223 of the Migration Regulations. The decision was made by Alison Mercer, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant had satisfied clause 186.223, which requires an approved nomination for the position, and whether there was any discretion to overlook this requirement due to circumstances beyond the applicant's control. The Tribunal was also required to consider the implications of the employer's nomination being refused and the applicant's failure to seek review of that refusal.

The Tribunal reasoned that clause 186.223(2) mandates that the Minister must have approved the nomination, and this requirement is not subject to any discretion to waive or overlook it, even in the presence of compassionate or compelling circumstances. The evidence showed that the applicant's employer's nomination was refused on 16 October 2018, and no review of this refusal was sought within the prescribed timeframe. Consequently, the Tribunal found that the applicant was not the subject of an approved nomination, a prerequisite for meeting clause 186.223. This conclusion was supported by the Federal Court's reasoning in *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, which dealt with a similar criterion for a subclass 187 visa and affirmed that the requirement for an approved nomination is a factual one that cannot be circumvented.

As the applicant failed to satisfy the essential criterion of having an approved nomination under clause 186.223, the Tribunal concluded that she could not be granted a subclass 186 visa in the Temporary Residence Transition stream. Accordingly, the Tribunal affirmed the decision not to grant the 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 EVIDENCENomination 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. As noted by the delegate, the nomination of the applicant by her employer, T & A Hakim Pty Ltd as trustee for the T & A Hakim Unit Trust, was refused by the Department on 16 October 2018. As put to the applicant pursuant to its s.359A letter, the Tribunal has no record that the employer sought review of that decision within the prescribed timeframe for doing so. Accordingly, the Tribunal finds that the applicant is not the subject of an approved nomination by T & A Hakim Pty Ltd as trustee for the T & A Hakim Unit Trust and thus cannot satisfy cl.186.223(2). She therefore cannot meet cl.186.223 as a whole. As discussed at hearing, cl.186.223(2) confers no discretion on the decision maker (whether the delegate or Tribunal on review) to waive the requirement to have an approved nomination, and/or to take into account any compassionate or compelling circumstances that may account for the absence of a nomination and/or affect the circumstances of an applicant. There is no evidence that the applicant is the subject of an approved nomination by another employer, and even if she were, the Tribunal’s view is that this would not satisfy cl.186.223. This was the view taken in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (which concerned an almost identically worded criterion for a subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the 'position' referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.

Decision

Reasons for decision

Therefore, the Tribunal must find that cl.186.223 is not met, and that the applicant cannot be granted a subclass 186 visa in the TRT stream. The applicant has only sought to satisfy the criteria for a subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.Alison MercerMemberATTACHMENT 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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