Singh (Migration) - [2021] AATA 5443

Singh (Migration) [2021] AATA 5443 (27 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dilbag Singh
CASE NUMBER:  1835508
HOME AFFAIRS REFERENCE(S):          BCC2017/2016390
MEMBER:Alison Mercer
DATE:27 September 2021
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 27 September 2021 at 2:39pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233
CASES
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 7 June 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 Cook.
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 the applicant to be the subject of an approved nomination by his employer. The delegate found that the nomination of the applicant by his employer, Café 33 Cairns Pty Ltd, had been refused by the Department on 3 October 2018. The delegate found that the applicant therefore did not meet cl.187.233, and as he did not claim to meet any stream other than the Direct Entry stream, he could not be granted a subclass 187 visa.
The Tribunal received a review application from the applicant on 3 December 2018. It was accompanied by a copy of the delegate’s decision.
On 26 July 2021, the Tribunal wrote to the applicant to invite him to attend a telephone hearing on 20 August 2021.
On 3 August 2021, the Tribunal wrote again to the applicant to invite him to comment on or respond to information held by the Tribunal. The Tribunal advised the applicant that although the applicant’s employer, Café 33 Cairns Pty Ltd, had lodged an application for…

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 Singh (Migration)

Details

AGLC: Singh (Migration) [2021] AATA 5443
Case: [2021] AATA 5443
Decision Date: 27 September 2021

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, Direct Entry stream, by Mr. Singh. The Administrative Appeals Tribunal was required to determine whether the applicant had satisfied the criteria for the visa, specifically clause 187.233, which relates to the nomination of a position in regional Australia.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination for the position for which the visa was sought. Clause 187.233 sets out several requirements, including that the position must be the one nominated and that the nomination must have been approved and not subsequently withdrawn. The Tribunal also considered whether the applicant had provided evidence of an approved nomination by the employer, Café 33 Cairns Pty Ltd, or any other employer.

The Tribunal reasoned that the nomination by Café 33 Cairns Pty Ltd was refused by the Department and that a subsequent review of that refusal by the Tribunal was found to be without jurisdiction because the company had been deregistered. Consequently, there was no evidence before the Tribunal of an approved nomination by Café 33 Cairns Pty Ltd, or any other employer, in relation to the applicant. The Tribunal noted that current authority and departmental policy indicate that a position cannot be satisfied by a later nomination, even if it is for the same position and by the same employer, if it does not align with the initial declaration made in the visa application.

As the Tribunal concluded that the applicant had not met the requirements for the subclass 187 visa in the Direct Entry stream, specifically the requirement for an approved nomination, the decision under review to refuse the visa was 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 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 Café 33 Cairns Pty Ltd, was refused by the Department on 3 October 2018. As discussed with the applicant and set out in the Tribunal’s s.359A letter, although Café 33 Cairns 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 13 April 2021, as the company had been deregistered on 10 March 2021 and it had withdrawn its review application from the Tribunal. 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 was made 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 to refuse to grant him a subclass 187 visa 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(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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