Singh (Migration) - [2021] AATA 538

Singh (Migration) [2021] AATA 538 (2 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harwinder Singh
CASE NUMBER:  1827468
HOME AFFAIRS REFERENCE(S):          BCC2016/4333241
MEMBER:Alison Mercer
DATE:2 March 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 2 March 2021 at 1:23pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – related nomination application refused and application for review withdrawn – applicant not informed of withdrawal – current employment with another employer – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)
CASES
Hasan v MIBP [2016] FCCA 1049
Kaur v MIBP [2017] FCCA 564
Khanom v MIBP [2016] FCCA 3259
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 (the Act).
The applicant applied for the visa on 22 December 2016. 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 applicant is seeking the visa in 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(3) of Schedule 2 to the Regulations, which required that he was the subject of an approved nomination by his Australian employer. The delegate noted that the nomination by the applicant’s employer, Arun & Brothers Pty Ltd (trading as Oh! Delhi), was refused on 8 August 2018. As the applicant did not meet cl.187.233 as a whole, he did not meet the criteria for the Direct Entry stream. The delegate found that the applicant had made no claims against the Temporary Residence Transition stream.
The Tribunal received a review application from the applicant on 19 September 2018. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Daniel Estrin, as his representative and authorised recipient for correspondence.
On 8 October 2020,…

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 538
Case: [2021] AATA 538
Decision Date: 2 March 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Singh, who sought a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, under the Direct Entry stream. The core dispute revolved around whether the applicant met the criteria for an approved and un-withdrawn position nomination, as required for this visa subclass. The applicant's initial nomination by Arun & Brothers Pty Ltd was refused by the Department, and although the company sought review, it subsequently withdrew its application, leaving no approved nomination on record.

The Tribunal was required to determine if the applicant had satisfied the requirements of clause 187.233 of the Migration Regulations, specifically concerning the nomination of a position. This clause mandates that the position must be the subject of an approved nomination that has not been withdrawn, and that the applicant must be identified in relation to that position if the nomination was made after 1 July 2017. The Tribunal also had to consider whether a subsequent nomination, even for the same position by the same employer, could satisfy these criteria, or if a nomination by a different employer could be relied upon.

The Tribunal reasoned that the applicant had failed to meet the essential criterion that the position be the subject of an approved and un-withdrawn nomination. It noted that the original nomination by Arun & Brothers Pty Ltd had been refused and the subsequent review application was withdrawn, meaning there was no evidence of an approved nomination. The Tribunal applied the principle that a visa application under the Direct Entry stream must relate to the specific position for which the declaration was made, and that a later nomination, even by the same employer for the same position, or any nomination by a different employer, could not satisfy this requirement.

Consequently, the Tribunal affirmed the decision not to grant Mr. Singh the Regional Employer Nomination (Permanent) (Class RN) visa, as the requirements for the Direct Entry stream had not been met.

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 r.1.13A and r.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 him by Arun & Brothers Pty Ltd, was refused by the Department on 8 August 2018. As discussed with the applicant, although Arun & Brother 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 February 2020 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 the applicant’s new employer may be willing to nominate him for another visa. 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 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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