Quach (Migration)

[2020] AATA 750

Quach (Migration) [2020] AATA 750 (20 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tan Duy Quach
Mrs Thanh Bao Ngoc Nguyen

CASE NUMBER:  1806769

HOME AFFAIRS REFERENCE(S):          BCC2017/1685146

MEMBER:Mark Bishop

DATE:20 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant and second named applicant, respectively, meet the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.233 of Schedule 2 to the Regulations; and

·cl.187.311 of Schedule 2 to the Regulations.

Statement made on 20 March 2020 at 12:10pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Chef – subject of an approved nomination ­­– linking a visa application to a nomination application – incorrect TRN declared in visa application – innocent mistake – ‘intended’ nomination application approved by the Department – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 105
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

CASES
Chen v MIAC [2011] FMCA 859
Patel v Minister for Immigration and Citizenship [2011] FCA 1220
Pavuluri v Minister for Immigration and Border Protection [2014] FCA 502
Singh v MIBP [2017] FCAFC 105

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 11 May 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 Direct Entry stream, to work in the nominated position of Chef (AMZSCO 351311).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because as stated in the delegate’s record provided to the Tribunal by the applicant “…on 31 October 2016 the nomination lodged by Holtzman Enterprises Pty Ltd being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Home Affairs”. The delegate noted that the regulations do not allow the linking of applications for visas to another nomination application after the lodgement.

6. The applicants appeared before the Tribunal on 11 March 2020 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered Migration Agent (MA).

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has an approved nominating sponsor and position in which to be engaged in employment

   Nomination of a position

10. 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.

11. 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.

    Background

    Application to the Department

12. On 26 January 2016 Holtzman Enterprises Pty Ltd (‘the nominator’) lodged a nomination application (‘the first nomination application’) which listed the applicant in these proceedings as nominee. The Transaction Reference Number (TRN) of this application was EGOAELBY2H. On 31 October 2016, this nomination application was refused by a delegate of the minister for Home Affairs. No visa application in associated with this nomination was lodged.

13. On 8 May 2017 the nominator lodged a further nomination application (‘the second nomination application’) which listed the applicant as a nominee. The TRN of this application was EGOEG8OQYP.

14. On 11 May 2017 the applicant lodged an application for a 187 visa (‘the visa application’). In the visa application, the applicant was required to input the details of the nomination that related to his application. In this field, the applicant entered the TRN of the first nomination application, EGOAELBY2H.

15. On 29 January 2018 the Department sent the applicant a natural justice letter inviting him to comment on the fact that the nomination application corresponding to the TRN that was provided on the visa application form had been refused (DF, Doc ID: 4231510). The letter relevantly included the following information:

    
    

    ·The nomination submitted to the department by HOLTZMAN ENTERPRISES PTY LTD listing you as their Nominee has been refused (on 31/10/2016). Unfortunately this means that your visa application cannot be approved. There are two options you can now take in relation to this decision

    […]

    
    
    

16. On 2 February 2018 the applicant submitted a response to the Department’s letter (DF, Doc ID: 231510). In this response the applicant submitted that the related nomination application for the visa application was the second nomination application. This nomination application was still undecided at the time of the applicant’s response. The applicant submitted that due to an error an incorrect TRN referring to the first nomination application had been provided in the visa application. The applicant provided a copy of the acknowledgment of application letter relating to the second visa application dated 8 May 2017.

17. The applicant stated that they had made a clerical error inputting the incorrect number and that the timing of the applications clearly indicated that the intention was to include the TRN of the second nomination application. They stated that they had submitted a ‘Notification of Incorrect Answers’ form (NIA) to rectify the mistake and that they requested the Department link the second nomination application to the visa application.

18. On 2 February 2018 the applicant submitted a NIA (DH, Doc ID: 4231529). In response to the field marked “Give details of the incorrect information”, the applicant entered “Give details of the related nomination. Reference number type: Nomination TRN Transaction Reference Number (TRN) EGOAELBY2H”. In response to the field marked “Give details of the correct information”, the applicant entered “Give details of the related nomination. Reference number type: Nomination TRN Transaction Reference Number (TRN) EGOEG8OQYP. In response to the field marked “Reason why incorrect information was provided” the applicant entered “Innocent mistake”.

19. On 28 February 2018 the applicant sent an email to Clare McNamara, Director, Permanent Employer Sponsored Entry program, reiterating what they had stated above and requesting her to link the visa application to the second nomination application (TF 15). On 1 May 2018 they received the following reply from the Department: “The department’s policy position is that where a visa applicant declares the incorrect TRN of their associated nomination, this information cannot be corrected” (TF 16).

    Decision of the delegate

20. On 5 March 2018 the delegate refused the visa application. In refusing the application the delegate outlined the sending of the natural justice letter and the response of the applicant discussed above. They stated that they had taken this information into account but “noted that regulations do not allow linking the visa application to another nomination after lodgement…as the appointment [sic] has been refused, regulation 187.233(3) is not met.”

21. On 13 March 2018 the applicant applied to the Tribunal for review of the decision of the delegate to refuse the visa application.

    Submissions of the Applicant

22. The submissions of the applicant’s MA for the applicant to the Tribunal (TF 44-49) can be summarised as follows:

    ·The visa application was intended to be linked with the second nomination application and that this was simply a case of entering numbers incorrectly. They are unable to establish what happened but it may have been wrongly selected from an autofill option or accidently copied from the acknowledgement of the old application.

    ·Section 105 of the Migration Act requires applicant’s to notify an officer in writing of the incorrectness and of the correct answer. The policy of the Department is that if the person provides corrected information before the visa is granted, the decision maker should assess whether the visa can be granted in light of the corrected information.

    ·The response of the Department on 1 May 2018 is in direct contravention of s 105 of the Migration Act and there is nothing in the Migration Regulations or policy applying at the time of lodgement of the visa application which would direct the Department to act this way.

    ·The delegate’s conclusion that as the first nomination application had been refused, regulation 187.233(3) is not met is fundamentally flawed. This is because adopting the delegate’s reasoning would lead to the conclusion that the applicant does not satisfy 187.233(1), a time of application criteria. 187.233(1) requires that the “the position to which the application relates is the position: (a) nominated in an application for approval…” As the first nomination application had already been refused at the time its TRN was included in the visa application, the visa application could not have been lodged in association with a nomination which was no longer in existence.

    ·Neither the Migration Regulations nor PAM3 explicitly exclude the possibility of correcting a TRN. PAM3 states: “…The visa applicant cannot be considered against a different nomination or position – refer to Declaration required regarding the nomination...The primary applicant must declare that the position to which their application relates is a position nominated under regulation 5.19…”

    ·The subsequent introduction of cl 187.233(1)(aa) which provides that a second nomination for the same position cannot be linked to an undecided visa application that was lodged in association with the first (withdrawn or refused) nomination relates to circumstances different to those applicable in the present application for review.

    Relevant law

23. At the time of the visa application, reg 187.233(1) made it a condition for approval of a 187 visa application that “the position to which the application relates is the position…nominated in an application for approval that seeks to meet the requirements of” reg 5.19(4)(h)(ii). Regulation 187.233(1)(b) also required that “the declaration in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.” The nomination must have been made by the person who will employ the applicant and the nomination must have been approved and not subsequently withdrawn: reg 187.233(2) – (4).

24. Paragraph 1114C(3)(d) of Sch 1 to the Migration Regulations provided that “An applicant seeking to satisfy the primary criteria must declare in the application that the position to which the application relates is a position nominated” under reg 5.19.

    Linking a visa application to a nomination application

25. As outlined above, it is a requirement for the grant of a 187 visa that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114C (3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination of a position made by a different employer. Additionally, on current authority a later nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria. This was the view taken in Singh v MIBP [2017] FCAFC 105. 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.

26. The Court reasoned that the words in cl.187.233, at [88]:

    ·    ‘refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.

27. Her honour went on to state at [90] that the migration “scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).”

28. Although the Court’s comments were strictly obiter, they are nonetheless persuasive. Following this, it is the Tribunal’s view (as presently constituted) that in practice where a nomination is refused, the visa applicant will not meet cl 187.233 unless there is also a review of that decision pending.

29. However, it is open to the Tribunal to distinguish the circumstances in the present application from Singh on the basis of the applicant’s intention in lodging the visa application. The basis for distinguishing the circumstances of Singh with those in the present application would be if the Tribunal accepts that the applicant made an innocent mistake in including the TRN of the first nomination application in the visa application, always intended the application to be made in relation to the second nomination application, and finds that the declaration was intended to be made in relation to the second nomination application.  In addition, as opposed to the circumstances considered in Singh, the first nomination had already been refused by the department prior to the second nomination and visa application being made. The second nomination had also been lodged prior to the visa application being made and was being assessed by the Department.  In these circumstances the Tribunal believes it is appropriate to distinguish Singh.

    Circumstances in which a visa declaration may be corrected

30. Singh concerned a situation in which an applicant attempted to link an existing visa application to a new nomination. There has been no judicial consideration of compliance with cl 187.223(1) where an applicant has argued that they made an innocent mistake in linking their visa application with an already refused application rather than one that was presently on foot.

31. While the position is not clear due to a lack of binding authority on the issue, the Tribunal accepts as a matter of fact, that the information in the application form was an innocent mistake and not the intended information. The Federal Court has considered the circumstances in which an answer in a visa application might be considered to be ‘incorrect’ and therefore may be able to be corrected by the applicant, in relation to a skilled subclass 485 visa. It is a requirement for making a valid skilled visa application that an applicant has nominated a skilled occupation in the visa application form. There are several matters in which applicants have alleged they had mistakenly nominated the wrong occupation, however in each of these cases, the Tribunal made factual findings that the applicant had not incorrectly nominated the occupation.

32. In Patel v Minister for Immigration and Citizenship [2011] FCA 1220, the Court considered that where the Tribunal had found that it was the intention of the applicant to nominate a specified occupation, s 105 did not operate to change what was at the time a correct answer. The Court accepted the factual finding of the Tribunal that the applicant intended to select the occupation which he did.

33. Similarly, in Pavuluri v Minister for Immigration and Border Protection [2014] FCA 502 [33], the Court left open the possibility that the Tribunal may have regard to evidence or other material in determining which occupation an applicant intended to specify. In that case, in considering s 105, Mortimer J gave the following example of an incorrect answer that s 105 would operate to correct at [49]:

34. …if in answer to a question about the receipt number or reference number for the skills assessment application, the wrong number was entered because of a typographical error, this is the kind of incorrect answer “at the time it was given” which, under s 105, the visa applicant would be obliged to correct as soon as reasonably practicable (emphasis added). The Tribunal is of the view the entry of the wrong number is properly characterised as a transcription error. The Tribunal is of the view this transcription error is in substance no different to a typographical error as outlined by Mortimer J.

35. However, there is some conflicting authority on this position, for example obiter comments in Chen v MIAC [2011] FMCA 859 suggest that where an applicant makes a mistake of this kind, the only option is to make another application.

36. The facts of the example given by the Court in Pavuluri are similar to the circumstances of the present application. Applying the reasoning in these cases which considered subclass 485 visas by analogy suggests that it is open to the Tribunal to consider that the applicant intended to refer to the TRN of the second nomination application which at the time they made the visa application was still on foot with the Department.

37. Therefore, the Tribunal makes a finding of fact that in the present application the visa application “was intended to be linked with the second nomination application and that this was simply a case of entering numbers incorrectly” The Tribunal finds that the position in the visa application is one nominated in “in an application for approval that seeks to meet the requirements of” reg 5.19, namely the second nomination application which was subsequently approved by the Department.

38. The Tribunal finds that the position in the visa application is the position nominated in the second nomination application because, on examination of the submissions and evidence presented, it is satisfied that it was the position intended to be the one in relation to which the 1114C(3)(d) declaration was made.

39. Hence the applicant now meets cl.187.233 (3) of Schedule 2 to the Regulations.

1. Accordingly the requirements of Cl.187.233 are met.

   Secondary applicant

2. The secondary applicant is a member of the family unit of the applicant. Accordingly the secondary applicant meets the criteria contained in cl.187.311.

3. Therefore, cl.187.311 is met.

   CONCLUDING PARAGRAPH (ALL ISSUES)

4. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

5. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant, and second named applicant, respectively,  meet the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

   ·cl.187.233 of Schedule 2 to the Regulations; and

   ·cl.187.311 of Schedule 2 to the Regulations.

   Mark Bishop
   Member

   
   

   ATTACHMENT A

   187.233(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.