PETROCCO (Migration) - [2018] AATA 5755

PETROCCO (Migration) [2018] AATA 5755 (11 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Selina Petrocco
CASE NUMBER:  1602166
HOME AFFAIRS REFERENCE(S):           BCC2015/1836245
MEMBER:Alison Mercer
DATE:11 December 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 11 December 2018 at 12:04pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent)(Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Pastry Cook – nomination refused – Tribunal attempted to contact Applicant – no response – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, r 1.13, Schedule 2, cls 186.223, 187.233

CASES
Hasan v MIBP [2016] FCCA 1049
Hasran v MIAC [2010] FCAFC 40
Kaur v MIBP [2017] FCCA 564
Khanom v MIBP [2016] FCCA 3259
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 Immigration and Border Protection on 1 February 2016 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 26 June 2015. 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.
In the present case, the applicant sought the visa in Direct Entry stream, to work in the nominated position of Pastry Cook.
The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, which required that, amongst other things, she was the subject of an approved nomination by her employer (cl.187.223(3)). The delegate noted that the nomination lodged by the applicant’s employer, Gothic Downs Pty Ltd, was refused on 21 December 2015.
The Tribunal received a review application from the applicant on 22 February 2016. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Mohit Nakra, as her representative and authorised recipient for correspondence. Subsequently, the Tribunal wrote to the applicant to advise that her agent had had his registration suspended but that he remained her authorised recipient for correspondence until such time as she nominated another authorised recipient for correspondence.
The matter was constituted to a Tribunal Member on 5 September 2018.
On…

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 PETROCCO (Migration)

Details

AGLC: PETROCCO (Migration) [2018] AATA 5755
Case: [2018] AATA 5755
Decision Date: 11 December 2018

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant's employer, Gothic Downs Pty Ltd, had its nomination of the applicant refused by the Department on 21 December 2015. Despite the applicant seeking review of this decision with the Tribunal, the Tribunal affirmed the refusal of the nomination on 8 November 2018. The applicant then sought review of the visa refusal.

The primary legal issue before the Tribunal was whether the applicant could satisfy the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the nominated position. This clause requires that the position to which the visa application relates must be the same position that was the subject of an approved employer nomination, and in relation to which the applicant made a declaration in their visa application. The Tribunal also considered whether a subsequent nomination, even by the same employer for the same position, could satisfy this criterion.

The Tribunal reasoned that a fundamental requirement for the Direct Entry stream is that the visa application must relate to the specific position that was the subject of the approved nomination and the applicant's declaration. As the original nomination for the applicant's position had been refused and affirmed on review, and no subsequent nomination had been lodged by the employer, this requirement could not be met. The Tribunal relied on existing authority, including *Hasan v MIBP* and *Singh v MIBP*, which established that a later nomination, even for the same position by the same employer, would not satisfy the criterion because it would not be the nomination in relation to which the applicant made the declaration in their visa application.

Consequently, the Tribunal concluded that the applicant had failed to meet the essential criteria for the Subclass 187 visa in the Direct Entry stream. The Tribunal affirmed the decision not to grant the applicant 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 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 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 in the delegate’s decision and set out in the Tribunal’s s.359A letter, the applicant’s employer, Gothic Downs Pty Ltd, had its nomination of the applicant refused by the Department on 21 December 2015, and although it sought review of that decision with the Tribunal, the Tribunal affirmed the decision to refuse the nomination on 8 November 2018. There is no evidence before the Tribunal that that employer lodged another nomination. It is a requirement for the Direct Entry stream (cl.187.233) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2] [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).[2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186) - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018). This was the view taken in Singh v MIBP [2017] FCAFC 105[3]. 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.[4] [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88]. [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that 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 to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

Decision

Reasons for decision

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.DECISION The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.Alison MercerMemberATTACHMENT 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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