SHAH (Migration) - [2018] AATA 4102

SHAH (Migration) [2018] AATA 4102 (28 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr AMRISH CHANDRAVADAN SHAH
Mrs BIJAL AMRISH SHAH
CASE NUMBER:  1712281
HOME AFFAIRS REFERENCE(S):           BCC2016/3187297
MEMBER:Hugh Sanderson
DATE:28 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 28 August 2018 at 2:26pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – nomination refused – no appeal lodged by nominator – profit and loss statement – annual turnover the business – not subject of an approved nomination – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 186.223

CASES
Hasan v MIBP [2016] FCCA 1049
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 Immigration and Border Protection on 25 May 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 26 September 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of accountant. The application of the second named applicant is based on her being a member of the family unit of a person who meets the primary criteria.
The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.
Background
The applicant applied for the visa on the basis of his employment and nomination by Esoft Solutions Pty Ltd for the position of an accountant. The Department on 14 March 2017 refused the nomination application by Esoft Solutions Pty Ltd. The applicant, in response to this information, stated that Esoft Solutions Pty Ltd had applied to the Tribunal for a review of that decision.
The delegate who considered the application was not satisfied that the fact that Esoft Solutions Pty Ltd had sought a review of the Department’s decision to refuse the nomination would justify delaying the decision. As the Department…

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: SHAH (Migration) [2018] AATA 4102
Case: [2018] AATA 4102
Decision Date: 28 August 2018

CaseChat Overview and Summary

This matter concerned an application for an Employer Nomination (Permanent) visa (Subclass 186) in the Temporary Residence Transition stream. The applicant sought to have the decision to refuse their visa application reviewed by the Tribunal. The applicant's sponsor, Esoft Solutions Pty Ltd, had previously applied for approval of a nomination in relation to the applicant, which was refused by the Department and subsequently affirmed by the Tribunal. No appeal was lodged by the nominator against this decision.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination, as required by clause 186.223 of the Migration Regulations. This clause mandates that the position to which the visa application relates must be the subject of an approved nomination that identifies the visa applicant, and that the nomination must not have been subsequently withdrawn. The Tribunal was also required to consider whether it was appropriate to delay a decision on the current visa application pending a potential new nomination application by the sponsor or another employer.

The Tribunal reasoned that the nomination application by Esoft Solutions Pty Ltd had been refused and that decision had been affirmed by the Tribunal, with no further appeal. Consequently, at the time of the decision, there was no approved nomination in place that identified the applicant. The Tribunal found that the applicant did not satisfy the criteria under cl.186.223(2) because the nomination had been refused and finalised. The Tribunal also determined that it was not appropriate to postpone the decision to await the outcome of any new nomination application, given the speculative nature of such an application and the likely delays in processing.

Accordingly, the Tribunal affirmed the decision not to grant the applicant an Employer Nomination (Permanent) visa. As the second applicant's claim was based on being a member of the family unit of the primary applicant, and the primary applicant did not meet the criteria, her application was also affirmed.

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 the subject of an approved nomination. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. The relevant nomination of the applicant was that applied for by Esoft Solutions Pty Ltd. This is referred to in the application for the visa being Transaction Reference Number EGOCK4FHHC. That nomination application by Esoft Solutions Pty Ltd was refused by the Department on 14 March 2017. An application for a review of that decision was unsuccessful and the Tribunal affirmed the decision to refuse the nomination application on 12 June 2018. No appeal has been lodged by Esoft Solutions Pty Ltd against that decision. As such, the applicant is not the subject of an approved nomination. The applicant said that Esoft Solutions Pty Ltd had not applied for approval of a new nomination application, but they were hoping that either Esoft Solutions Pty Ltd or another employer would sponsor the applicant for the visa. As the nomination application of Esoft Solutions Pty Ltd has been refused and finalised, the applicant is not the subject of an approved nomination to which the declaration was made in his visa application. Accordingly, the applicant would not satisfy the criteria in cl.186.223(2) even if a new application was made by the same employer for the same position or a different employer (see Hasan v MIBP [2016] FCCA 1049 and Singh v MIBP [2017] FCAFC 105). Even if a new nomination application had been made which would validate the current visa application, the Tribunal does not accept that it would be appropriate to delay any decision to allow the Department time to assess that application. The nomination application of the applicant sponsor, Esoft Solutions Pty Ltd, has been refused by the Department and that decision has now been affirmed by the Tribunal. There has been no appeal by Esoft Solutions Pty Ltd against the decision of the Tribunal to affirm the decision to refuse the nomination application. At the time of this decision, therefore, the applicant is not the subject of an approved nomination. The Tribunal has considered the application to postpone or delay any decision on the current application pending a further application by the applicant’s sponsor, Esoft Solutions Pty Ltd or any other potential employer, to be approved as a nominator of the applicant. The Tribunal does not accept that it is appropriate to await the outcome of any new application by Esoft Solutions Pty Ltd or any other employer. The Tribunal has access to only limited information which Esoft Solutions Pty Ltd may rely upon to support their nomination application. The outcome of the application, particularly as the application was previously refused by the Department, is speculative and the delays for the processing of any application likely to be considerable.

Decision

Reasons for decision

The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed. As the application of the second named applicant is based on the claim that she is a member of the family unit of a person who meets the primary criteria and as the applicant does not meet this criteria, the decision to refuse her application must also be affirmed.DECISION The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.Hugh SandersonMemberATTACHMENT A186.223(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 subregulation 5.19(3); and(b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and(c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.(2) The Minister has approved the nomination.(3) The nomination has not subsequently been withdrawn.(3A) 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.(4) The position is still available to the applicant.(5) 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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