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

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).
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).
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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Chef (AMZSCO 351311).
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.
The applicants…

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.

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Details

AGLC: Quach (Migration) [2020] AATA 750
Case: [2020] AATA 750
Decision Date: 20 March 2020

CaseChat Overview and Summary

This matter concerned an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream, by an applicant who was the subject of an approved nomination. The dispute arose because the applicant, in their visa application, mistakenly provided the Transaction Reference Number (TRN) of a previously refused nomination application, rather than the TRN of a subsequent, still undecided nomination application lodged by the same nominator. The case was heard by Mark Bishop, acting as a member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for the visa, specifically concerning the linking of the visa application to an approved nomination. This involved determining whether the incorrect TRN provided in the visa application constituted a fatal flaw or if the applicant's clear intention to link the visa to the second, valid nomination application could be recognised, despite the clerical error. The Tribunal also had to consider the requirements of clause 187.233 of Schedule 2 to the Regulations, which outlines the conditions for an approved nomination and its association with the visa application.

The Tribunal reasoned that the applicant had made an innocent mistake by entering the incorrect TRN, evidenced by the timing of the applications and the subsequent submission of a Notification of Incorrect Answers form. It was clear from the applicant's response to the Department's natural justice letter that the intention was to link the visa application to the second nomination application, which was lodged after the first had been refused and was still pending. The Tribunal found that the applicant had demonstrated that the nominator was the intended employer and that the position was still available.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration. The direction was that the applicant met the criteria under cl.187.233 and cl.187.311 of Schedule 2 to the Regulations, allowing for further assessment of the remaining visa requirements.

Orders

Orders of the court

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Background

Background to the litigation

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.BackgroundApplication to the Department 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. 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. 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. 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 […] 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. 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.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant has an approved nominating sponsor and position in which to be engaged in employmentNomination 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.BackgroundApplication to the Department 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. 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. 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. 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 […]

Decision

Reasons for decision

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