Santos Mendonca (Migration) - [2020] AATA 3024

Santos Mendonca (Migration) [2020] AATA 3024 (7 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Tatiane Santos Mendonca
CASE NUMBER:  1913661
HOME AFFAIRS REFERENCE(S):          BCC2018/928708
MEMBER:Alan McMurran
DATE:7 May 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:
·cl.187.233 of Schedule 2 to the Regulations;

Statement made on 07 May 2020 at 2:50pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry Stream – child care worker – application submitted incorrect TRN – departmental request for new application – no case law for rectification of error in application – nomination with correct TRN approved – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.233
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 30 May 2019 for review of a decision made on 10 May 2019 by a delegate of the Minister for Home Affairs, to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) 187 visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of the Federal Republic of Brazil, applied for the visa on 27 February 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Child Care Worker.
Background
On 10 April 2019, the Department sent a natural justice letter to the applicant containing information for response as follows:
“This visa application was linked to an entirely unrelated nomination application when it was lodged: that of YMCA OF THE NORTHERN TERRITORY LTD for AZENHA DE OLIVEIRA, Juliana (22/06/1991,F) (RID: 25609407). Therefore, even though Tatiane's nomination (RID: 1420610430) has been approved, her visa application is unable to be assessed further. Therefore, the visa applicant SANTOS MENDONCA, Tatiane (21/12/1987,F) has the option of withdrawing this visa application and lodging a new visa application to be linked to the correct nomination.”
On 10 April 2019, the applicant’s representative responded to the Department as follows:
“Dear Case Officer,
We have now updated the system with a form for incorrect answers. As this was a…

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 Santos Mendonca (Migration)

Details

AGLC: Santos Mendonca (Migration) [2020] AATA 3024
Case: [2020] AATA 3024
Decision Date: 7 May 2020

CaseChat Overview and Summary

The applicant, Santos Mendonca, sought review of a decision concerning her application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry Stream, for the occupation of Child Care Worker. The dispute arose because the applicant's visa application was initially linked to an unrelated nomination application due to a typographical error in the Transaction Reference Number (TRN). Despite the correct nomination being approved, the Department indicated the visa application could not be assessed further and offered the option to withdraw and reapply. The applicant's representative argued the incorrect TRN was a genuine typing error, not a substantive mistake, and that re-lodging would have severe consequences due to updated visa requirements. The matter was heard by Alan McMurran.

The primary legal issues before the Tribunal were whether the applicant had made an inadvertent mistake or innocent error in providing the incorrect TRN, and if so, whether this error could be rectified to allow the application to be processed based on the corrected nomination. The Tribunal was required to consider the Department's stance that the error prevented further assessment and the applicant's contention that the error was a mere typographical mistake, not a fundamental flaw, and that the integrity of the process had not been threatened.

The Tribunal reasoned that the applicant had indeed made a mistake by submitting the wrong TRN, but found this mistake to be inadvertent and a typographical error. It noted that all other submitted information related to the correct nomination for the Child Care Worker position, and that the applicant had promptly attempted to rectify the error. The Tribunal preferred the view that it could consider additional evidence to clarify the intended nomination and determine if an incorrect answer could be corrected, finding that refusing to do so would not serve procedural fairness, especially when the integrity of the process was not compromised. The Tribunal concluded that the error was a genuine mistake and typographical, and that the intended visa application was always for the nominated occupation.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The direction was that the applicant meets the criteria for the Subclass 187 visa, specifically referencing cl.187.233 of Schedule 2 to the Regulations, and that the remaining criteria for the visa should be considered.

Orders

Orders of the court

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Background

Background to the litigation

In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Child Care Worker. Background On 10 April 2019, the Department sent a natural justice letter to the applicant containing information for response as follows:“This visa application was linked to an entirely unrelated nomination application when it was lodged: that of YMCA OF THE NORTHERN TERRITORY LTD for AZENHA DE OLIVEIRA, Juliana (22/06/1991,F) (RID: 25609407). Therefore, even though Tatiane's nomination (RID: 1420610430) has been approved, her visa application is unable to be assessed further. Therefore, the visa applicant SANTOS MENDONCA, Tatiane (21/12/1987,F) has the option of withdrawing this visa application and lodging a new visa application to be linked to the correct nomination.” On 10 April 2019, the applicant’s representative responded to the Department as follows:“Dear Case Officer,We have now updated the system with a form for incorrect answers. As this was a typing error we submit that it should be treated as incorrect information, we note that all other information provided supports the correct nomination however the reference number submitted was only incorrect. This should be treated as an incorrect answer to a question. Thank you for your care and consideration on this matter.” The applicant simultaneously lodged a Form 1023 to correct the error. The Form explained the error thus:“In the beginning of the application the incorrect TRN was provided as follows:Incorrect TRN EGOH205AMQThe correct TRN that should have been provided is:Correct TRN EGOHF4VAS2Typing error by migration agent, we note all documents submitted support the correct TRN, including the work experience, employment contract and references: the only incorrect information was the TRN, this is was not a assessed mistake or intentional, this was a staff who types the wrong TRN.”[sic] On 11 April 2019, the representative wrote to the Department with a request as follows:“I hope we can accept this change of information, as the applicant doesn’t have 3 years experience she can not withdraw and relodge as the new 187 requirements require 3 years experience (Changed 18 March 2018). This would have catastrophic effects on the applicants life and the childcare she is working at if it’s refused.” On 12 April 2019, representative wrote again requesting:“This issue we have with this case is that the new 187 laws require 3 years experience (this was not a requirement before). As my client was working whilst studying this has only reached 1 year post qualification experience. I could not find any transitional law as the nomination was lodged before the changes in March 2018 if we can lodge the visa under the previous law?We therefore request you use your discretion to accept the incorrect answers form as this was a typing error only. Please let me know if you can accept our request or if you have any insight to provide on the withdraw/relodge predicament?”

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 twofold, firstly whether the applicant has in fact made a mistake or innocent error, and secondly, whether the error can be corrected, and the application processed based on the information provided and related to the corrected TRN.Findings In the present circumstances, the Tribunal makes the following findings of fact:·The applicant submitted the wrong TRN with the application (the “mistake”);·the mistake was inadvertent and a typographical error;·all information submitted with the application related to the nominated application for the occupation of Child Care Worker, referenced by a different TRN;·the applicant attempted to rectify the mistake without prevarication, and lodged immediately a Form 1023;·the Department did not accept the notification of change was due to “mistake”, capable of remedying the defect caused by a typographical error with the TRN;·the nomination related to the visa application (using the corrected TRN) was approved by the Department, and all other information for the visa application was accepted and the criteria for the visa otherwise met; The Tribunal also finds on the information that there is no contest that the error with the TRN was other than a genuine mistake and typographical. This appears to have been accepted also by the Department.Can this mistake be rectified? Having regard to the competing authorities and opinions expressed, this Tribunal prefers the view that it may consider or examine other evidence [6], such as provided in this instance, to explain precisely which application nomination and occupation was intended to be specified and related to the visa application, and in order to determine whether it is possible to correct an incorrect answer lodged with the visa application. [6] see for example the reasoning (obiter) of Mortimer J in Pavuluri Not to do so in this Tribunal’s view does not serve the overall objective of procedural fairness in dealing with such applications, and where the integrity of the process has not been threatened. The applicant’s representative has clearly admitted the clerical mistake, caused by human error, and well before the matter was decided. Reading the application form as lodged, it is clear (as acknowledged by the Department) that there is no connection whatsoever between the nomination for this applicant, and another nomination concerning the YMCA of the Northern Territory. The facts lead inevitably to the conclusion of mistake caused by typographical error, and that the intended visa application was always for a child care worker as nominated by the nominating employer. To consider the application otherwise, leads to an outcome which is disproportionate for this applicant in terms of the nominated occupation (no longer being available to her), and for no other reason than human error, and for which she was not herself responsible.

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 application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:·cl.187.233 of Schedule 2 to the Regulations; andAlan McMurranMemberATTACHMENT 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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