Rajinder Singh (Migration) - [2021] AATA 1416

Rajinder Singh (Migration) [2021] AATA 1416 (13 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rajinder Singh
CASE NUMBER:  1919427
HOME AFFAIRS REFERENCE(S):          BCC2017/4124531
MEMBER:Jade Murphy
DATE:13 April 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 13 April 2021 at 11:36am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – subject of an approved nomination – no response to s.359A invitation – loss of the right to a hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233
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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 6 November 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 (Cth) (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 is seeking the visa in the Direct Entry stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111).
The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations. The delegate found that the nomination referred to in cl.187.233(1) was refused by a delegate for the Minister on 29 May 2019. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.
On 19 March 2021, 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 application for review of the related nominated position, made by Tushaan Enterprises Pty Ltd (‘the nominator’) was refused by a delegate of the Minister of Home Affairs on 29 May 2019. The Tribunal noted that 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 Rajinder Singh (Migration)

Details

AGLC: Rajinder Singh (Migration) [2021] AATA 1416
Case: [2021] AATA 1416
Decision Date: 13 April 2021

CaseChat Overview and Summary

This matter concerned an application by Rajinder Singh for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought review of a decision not to grant the visa. The Tribunal was required to determine whether the position to which the application related was the subject of an approved nomination.

The central legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the approval of a nomination for the position. This clause requires, among other things, that the nomination has been approved by the Minister and has not been subsequently withdrawn.

The Tribunal found that the nomination lodged by Tushaan Enterprises Pty Ltd was refused by a delegate of the Minister on 29 May 2019. Although Tushaan Enterprises Pty Ltd applied for Tribunal review of this refusal, the Tribunal determined it lacked jurisdiction to hear that application because the nominator had been deregistered. Consequently, the nomination remained refused. As the applicant had not provided any evidence or submissions to satisfy the criteria for the visa, and the nomination was not approved, the Tribunal concluded that clause 187.233 was not met.

The Tribunal affirmed the decision not to grant the applicant the visa, as the essential criteria for the Direct Entry stream had not been satisfied due to the unapproved nomination.

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 position to which the application relates is the subject of an approved nomination.Nomination 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 reg 1.13A and reg 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. On 29 May 2019, the nomination lodged by Tushaan Enterprises Pty Ltd, being the nomination referred to in paragraph 187.233(1), was refused by a delegate for the Minister of Home Affairs. On 18 June 2019, Tushaan Enterprises Pty Ltd lodged an application for Tribunal review, but on 18 May 2020 the Tribunal decided it did not have jurisdiction to determine the nomination refusal review application as the nominator was deregistered. As a result, the nomination remains refused. No application for judicial review is pending. The applicant has not provided the Tribunal with any evidence or submissions in relation to this application for review. Based on the above, the Tribunal finds that the nomination remains refused, and therefore must find that the position to which the application relates is not the subject of an approved nomination. Therefore, cl 187.233 is not met. 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.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

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.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.

Ratio Decidendi

Legal Principle Established

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