Shadalooei (Migration) - [2022] AATA 3459

Shadalooei (Migration) [2022] AATA 3459 (7 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Shirin Shadalooei
REPRESENTATIVE:  Mr M Shamraiz Mehdi (MARN: 1465452)
CASE NUMBER:  1911687
HOME AFFAIRS REFERENCE(S):          BCC2018/897424
MEMBER:Alison Mercer
DATE:7 October 2022
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 7 October 2022 at 12:57pm
CATCHWORDS
MIGRATION – Regional Employer (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – recruitment consultant – subject of approved position nomination – related nomination application refused and application for review withdrawn – legislative amendments mean requirement cannot be satisfied by new nomination – no response to tribunal’s invitation to comment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 1, para 1114B(3)(d), Schedule 2, cl 187.233(3)
CASES
Hasran v MIAC [2010] FCAFC 40
Kaur v MIBP [2017] FCCA 564
MIAC v Li (2013) 249 CLR 332
Singh v MIBP [2016] FCCA 2229
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 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 25 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 (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 Recruitment Consultant.
The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, which required that she was the subject of an approved nomination by her Australian employer. The delegate found that the nomination of the applicant by her employer, ST Secure Solutions Pty Ltd, was rejected by the Department on 10 April 2019. The delegate therefore found that the applicant did not meet the criteria for a subclass 187 visa in the Direct Entry stream and had not made any claims to meet any other streams.
The Tribunal received a review application from the application on 10 May 2019. It was accompanied by a copy of the delegate’s decision and an…

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 Shadalooei (Migration)

Details

AGLC: Shadalooei (Migration) [2022] AATA 3459
Case: [2022] AATA 3459
Decision Date: 7 October 2022

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, in the direct entry stream, brought by the applicant, Mr. Shadalooei. The Administrative Appeals Tribunal was required to determine whether the applicant had satisfied the criteria for this visa subclass, specifically concerning the nomination of his employment position.

The primary legal issue before the Tribunal was whether the applicant's nominated position met the requirements of clause 187.233 of the Migration Regulations 1994. This clause mandates that the position must be the subject of an approved nomination application, located in regional Australia, and identified in relation to the applicant. Crucially, for nominations made on or after 1 July 2017, the nomination must have been approved and not subsequently withdrawn, and the position must still be available to the applicant.

The Tribunal noted that the nomination of the applicant's position by ST Secure Solutions Pty Ltd had been refused by the Department on 10 April 2019. Although ST Secure Solutions Pty Ltd had sought review of this refusal, their application was withdrawn, and the Tribunal found it had no jurisdiction to review that decision. Consequently, there was no evidence before the Tribunal that the applicant was the subject of an approved nomination. The Tribunal further observed that legislative amendments and current authority indicated that the requirement for an approved nomination could not be satisfied by a new nomination, even for the same position by the same employer, if the original nomination was not approved.

As the applicant had failed to satisfy the essential criteria for the subclass 187 visa in the direct entry stream, specifically the requirement for an approved and un-withdrawn nomination, the Tribunal affirmed the decision not to grant the 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 LAW, CLAIMS AND EVIDENCENomination 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. As noted above, the delegate’s decision record (a copy of which was provided to the Tribunal by the applicant), the nomination of the applicant by ST Secure Solutions Pty Ltd, was refused by the Department on 10 April 2019. As set out in the Tribunal’s s.359A letter, although ST Secure Solutions Pty Ltd sought review of that refusal decision with the Tribunal, the Tribunal (differently constituted) found that it had no jurisdiction to review that decision on 20 June 2022 as the company withdrew its review application. Therefore, there is no evidence before the Tribunal that the applicant is the subject of an approved nomination by that (or any other) employer. The Tribunal notes that it is a requirement for the Direct Entry stream (cl.187.233) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2] [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).[2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186) - visa applications – [8.1.3] TRT – Position must be that for which the visa application wamade and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

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.Alison MercerMemberATTACHMENT 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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