Sharda (Migration) - [2019] AATA 4281

Sharda (Migration) [2019] AATA 4281 (28 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Abhishek Sharda
Mrs Ausa Sharda
CASE NUMBER:  1905984
HOME AFFAIRS REFERENCE(S):           BCC2017/4363152
MEMBER:R. Skaros
DATE:28 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
Statement made on 28 August 2019 at 10:36am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream –the nomination of the applicant was refused–not the subject of an approved nomination – applicant is no longer employed by the nominator–decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 379
Migration Regulations 1994, Schedule 2, cl 187. 233,
CASES
Kaur v Minister for Immigration and Border Protection [2017] FCCA 564

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 20 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 (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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position for Hawkesbury Valley Meat Processors Pty Ltd.
The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination of the position lodged by Hawkesbury Valley Meat Pty Ltd in relation to the applicant was not approved.
On review, an officer of the Tribunal wrote to the applicants informing them that it is a requirement for the visa that the nomination for the position identified in the visa application has been approved. The applicants were requested to provide evidence that the relevant position in respect of the applicant is the subject of an approved nomination or evidence that there is a pending application for review of a decision to refuse the relevant nomination.
After requesting an extension of time to provide a response, which was granted, the applicant provided a written submission to the Tribunal, which was attached to an email dated 9 May 2019. The Tribunal has had regard to the information in the submissions further below.
On 21 June 2019 the Tribunal wrote…

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: Sharda (Migration) [2019] AATA 4281
Case: [2019] AATA 4281
Decision Date: 28 August 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Mr. Sharda for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, Direct Entry stream. The primary dispute concerned whether the nomination of a position by Hawkesbury Valley Meat Processors Pty Ltd, on which Mr. Sharda's visa application was based, had been approved. The Department had refused this nomination, and consequently, Mr. Sharda's visa application was also refused.

The Tribunal was required to determine whether the relevant nomination had been approved, as stipulated by clause 187.233 of the Migration Regulations. This clause mandates that the nominated position must be the subject of an approved nomination application, located in regional Australia, and, for nominations made on or after 1 July 2017, must identify the applicant. Crucially, the nomination itself must have been approved.

The Tribunal reasoned that the Department had refused the nomination, and there was no record of the nominator having applied for a review of that refusal. Despite Mr. Sharda's attempts to contact his former employer and his request for the Tribunal to consider his circumstances on natural justice grounds, he failed to provide evidence of an approved nomination or a pending review. Furthermore, Mr. Sharda did not appear at the scheduled hearing, and no further substantive information was provided. The Tribunal concluded that the primary applicant did not meet the requirements for the visa grant.

Consequently, the Tribunal affirmed the decision not to grant Mr. Sharda, and the secondary applicant (a member of his family unit), the Regional Employer Nomination (Permanent) (Class RN) visas.

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 relevant nomination has been approved.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 nomination has been approved. The applicant applied for the visa on the basis of a nomination of a position made by Hawkesbury Valley Meat Processors Pty Ltd (the associated nomination). The Department refused the associated nomination. Consequently, the visa application was also refused. The applicants applied for review of the decision to refuse the visa, but there was no record of the nominator having applied for review of the decision to refuse the nomination. The applicant was requested to provide evidence that the associated nomination had been approved or that the nominator had applied for review of the decision refusing the nomination. In his response to the Tribunal on 9 May 2019, the applicant submitted that he has tried unsuccessfully to contact his employer on several occasion. He stated that he worked for Hawkesbury Valley Meat Processors Pty Ltd and that the previous employer advised him that a nomination had been lodged and they were awaiting the reply. The applicant stated that he is planning to apply for a new nomination through a prospective employer who is willing to offer him a position on the basis that he should have a positive skills assessment as an Office Manager. He stated that he wants the Tribunal to consider his circumstances on natural justice grounds because, if there is no pending review of the nomination refusal, it is beyond his control. The applicant requested, as understood by the Tribunal, that no decision be made on his application until he has had a fair chance to obtain a new nomination through a prospective employer. He stated that if his request was not adhered to then he would have to return to India through no fault of his own. He stated that he has the experience and can transfer his skills and knowledge to local residents and there will be social and economic benefits if he is granted the visa as he will contribute to the society by paying taxes. As noted above, the applicants have since not appeared before the Tribunal at the scheduled hearing and no further information of substance was provided to the Tribunal in response to the invitation to comment on adverse information.

Decision

Reasons for decision

The secondary applicant applied for the visa on the basis of being a member of the family unit of the first named applicant. As the first named applicant does not meet a requirement for the grant of the visa, the Tribunal must also affirm the decision in respect of the secondary applicant.DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.R. SkarosSenior MemberATTACHMENT 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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