SINGH (Migration) - [2021] AATA 4111

SINGH (Migration) [2021] AATA 4111 (26 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Amarjit Singh
CASE NUMBER:  1830012
HOME AFFAIRS REFERENCE(S):          BCC2017/460471
MEMBER:Alison Mercer
DATE:26 August 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa.

Statement made on 26 August 2021 at 11:50am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – subject of an approved nomination – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233
CASES
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413
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 4 February 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 Café or Restaurant Manager.
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 he was the subject of an approved nomination by his employer. The delegate found that the nomination of the applicant by his employer, Aroroa G Pty Ltd, had been rejected by the Department on 24 August 2018.
The Tribunal received a review application from the applicant on 14 October 2018, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Bikram Sandhu, as his representative and authorised recipient for correspondence. The applicant subsequently appointed another registered migration agent, Mr Manoj Nanda, to these roles.
On 21 April 2021, the applicant advised the Tribunal that his agent no longer acted for him and that he wished all correspondence to be sent directly to him.
On 26 July 2021, the Tribunal wrote to the applicant to invite him to a telephone hearing on…

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: SINGH (Migration) [2021] AATA 4111
Case: [2021] AATA 4111
Decision Date: 26 August 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, Direct Entry stream. The applicant sought to have the decision reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the nomination of the position. This clause requires that the position to which the application relates be the subject of an approved nomination, made by the prospective employer, and that the visa application be made within six months of the nomination's approval.

The Tribunal found that the nomination made by Arora G Pty Ltd had been refused by the Department and that a subsequent review application by the employer had been withdrawn, meaning the Tribunal had no jurisdiction to review that refusal. Consequently, there was no evidence before the Tribunal of an approved nomination by Arora G Pty Ltd, or any other employer, in relation to the applicant. The Tribunal noted that current authority and departmental policy indicate that a later nomination, even for the same position by the same employer, cannot satisfy the Schedule 2 criteria if the original nomination was not approved. The Tribunal also determined it lacked jurisdiction to review decisions concerning the applicant's spouse and daughter, as they were not in the migration zone at the time of the visa and review applications.

The Tribunal affirmed the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187.

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa 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 Arora G Pty Ltd, was refused by the Department on 24 August 2018. As set out in the Tribunal’s letter of 3 August 2021, although Arora G Pty Ltd sought review of that refusal decision with the Tribunal, the Tribunal (differently constituted) found it had no jurisdiction to review that decision on 28 April 2021, after the employer withdrew the 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 was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

Decision

Reasons for decision

As noted above in paragraph 10, although the applicant and his former agent asked to have the applicant’s spouse and daughter (Neetu and Japjot Kaur) added to the review application after it had been made, the Tribunal finds that it has no jurisdiction to review the Department’s decisions in relation to them, as their movement records indicate that they were not in the migration zone (Australia) at the time that the visa application was made on 4 February 2017 or at the time that the review application was made on 14 October 2018. A decision to refuse a subclass 187 visa onshore is reviewable under s.338(2) but only for those visa applicants who were in the migration zone at the time that the visa application was made, and when the review application was made (see s.347(3)). As the movement records indicate that Neetu and Japjot Kaur were outside the migration zone on these dates (they arrived in Australia on 7 November 2018), the Tribunal has no jurisdiction to add them to the review application or to review any decision to refuse them subclass 187 visas. DECISION The Tribunal affirms the decision not to grant the named applicant a Regional Employer Nomination (Permanent) (Class RN) subclass 187 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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