Quintero Rondon (Migration) - [2020] AATA 3878

Quintero Rondon (Migration) [2020] AATA 3878 (13 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gustavo Alejandro Padilla Ibarra
CASE NUMBER:  1924469
HOME AFFAIRS REFERENCE(S):          BCC2018/990481
MEMBER:Jade Murphy
DATE:13 July 2020
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 13 July 2020 at 4:42pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Office Manager – no approved nomination – member of the family unit – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 1.13; Schedule 2, cls 187.233, 187.311
CASES
Singh v MIBP [2017] FCAFC 67
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 1 March 2018. 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 primary visa applicant sought the visa in the Direct Entry stream, to work in the nominated position of Office Manager (ANZSCO 512111).
The delegate refused to grant the visas because the primary visa applicant did not meet cl.187.233 of Schedule 2 to the Regulations as the associated employer nomination had been refused by a delegate of the Minister.
All references to ‘the applicant’ below are to the applicant to which this decision relates, namely Mr Gustavo Alejandro Padilla Ibarra, the secondary visa applicant.
On 22 June 2020 the Tribunal made a decision that it had no jurisdiction to determine the application of the primary visa applicant, Mrs Quintero Rondon.
On 23 June 2020, the Tribunal wrote to the applicant pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.
The particulars of the information were that the Tribunal had made a decision that it had no jurisdiction to determine the application of Mrs Quintero Rondon, the primary visa applicant.
It was explained in the…

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 Quintero Rondon (Migration)

Details

AGLC: Quintero Rondon (Migration) [2020] AATA 3878
Case: [2020] AATA 3878
Decision Date: 13 July 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Quintero Rondon concerning an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the Direct Entry stream for the position of Office Manager. The applicant sought review of a delegate's decision to refuse her visa application, which was combined with that of a primary applicant.

The central legal issue before the Tribunal was whether the applicant qualified as a member of the family unit of the primary visa applicant, as required by clause 187.311 of the Migration Regulations. This clause mandates that a secondary applicant must be a member of the family unit of a person who holds a visa granted based on satisfying the primary criteria. The Tribunal also implicitly considered whether the primary applicant had satisfied the requirements for the visa grant, as this was a prerequisite for the applicant's own eligibility.

The Tribunal reasoned that the applicant's eligibility as a secondary applicant was contingent on the primary applicant satisfying the criteria for the Subclass 187 visa. Based on the evidence presented, the Tribunal concluded that the applicant was not a member of a family unit of a person who held a visa granted on the basis of satisfying the primary criteria. Consequently, as the primary visa applicant had not met the requirements for the visa, the applicant also failed to satisfy the requirements.

The Tribunal affirmed the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) 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 EVIDENCE The issue in the present case is whether the applicant is a member of a family unit of a person who holds a visa that was granted based on satisfying the primary criteria, as required by cl.187.311. On 1 March 2018, the primary visa applicant lodged an application for a Regional Employer Nomination (Permanent) visa. This application was combined with that of the applicant. On 12 August 2019, a delegate of the department refused the applications of the primary and secondary visa applicant. The primary and secondary visa applicant lodged an application for review of the delegate’s decision on 2 September 2019. On 22 June 2020 the Tribunal made a decision that it had no jurisdiction to determine the application of Mrs Quintero Rondon, the primary visa applicant. Pursuant to cl.187.311 it is a requirement for the grant of the visa as a secondary applicant that the secondary applicant is a member of a family unit of a person who holds a visa that was granted based on satisfying the primary criteria. Based on the evidence before the Tribunal, the applicant is not a member f a family unit of a person who holds a visa that was granted on the basis of satisfying the primary criteria. As the primary visa applicant has not satisfied the requirements for the grant of a Subclass 187 visa, the applicant also does not satisfy the requirements for the grant of a Subclass 187 visa. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.Jade MurphyMemberATTACHMENT 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(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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