Singh (Migration) - [2020] AATA 5201

Singh (Migration) [2020] AATA 5201 (27 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Satpinder Singh
Ms Sapna
CASE NUMBER:  1921378
HOME AFFAIRS REFERENCE(S):          BCC2018/879939
MEMBER:C. Packer
DATE:27 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 27 October 2020 at 11:04am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Restaurant Manager – subject of an approved nomination – later nomination of a position made by a different employer – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233
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 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 23 February 2018. 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 of Restaurant manager.
The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no approved nomination.
The applicant appeared before the Tribunal on 27 October 2020 by telephone to give evidence and present arguments. His representative also attended.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

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) [2020] AATA 5201
Case: [2020] AATA 5201
Decision Date: 27 October 2020

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. Satpinder Singh. The applicant was nominated by G FORTUNE PTY LTD for a position as Restaurant Manager. The core dispute revolved around the status of the employer's nomination, which had been refused by a delegate of the Minister and for which the applicant claimed an appeal had been lodged. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had met the essential criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant had satisfied clause 187.233 of the Migration Regulations 1994, which requires, among other things, that the position be the subject of an approved nomination that has not been subsequently withdrawn. Specifically, the Tribunal had to ascertain if an appeal against the refusal of the nomination had been validly lodged and was pending, or if the nomination had been approved. The applicant contended that an appeal had been lodged with the AAT, providing evidence in the form of a screenshot of an online lodgement.

The Tribunal considered the evidence presented by the applicant, including the initial refusal of the nomination by the Minister's delegate on 1 July 2019, and the applicant's assertion that an appeal was lodged on 12 July 2019. However, the Tribunal noted that the nominator had not appealed the nomination refusal decision, and there was no record of an approved nomination or a pending review of the refusal. Despite the applicant's submission of a screenshot indicating an appeal lodgement, the Tribunal found that this did not establish an approved nomination, which is a mandatory criterion for the visa.

Consequently, the Tribunal concluded that the applicant had not met the essential criteria for the grant of the visa, specifically the requirement for an approved nomination. Therefore, the Tribunal affirmed the decision under review, meaning the applicant was not granted the Regional Employer Nomination (Permanent) (Class RN) visa.

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. In this case, on 23 February 2018 G FORTUNE PTY LTD (the nominator) made an application listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa). The position was said to be Restaurant Manager 141111, and nominated the applicant. However, on 1 July 2019 a delegate of the Minister rejected the application. The nominator did not appeal the nomination refusal decision. On 2 October 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to comment on or respond to certain information which the Tribunal considered would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review. On 16 October 2020 the applicant responded and stated in part:Immigration History of Satpinder SinghHe came to Australia in May 2014 to pursue masters in International Tourism and Hotel management from Southern Cross University. In July 2016 he successfully completed his master degree. After completing his study, he was very enthusiastic to find a job in a five-star hotel and after few years’ experience become manager and later work as General Manager in a five/six-star hotel. He soon realised that it was not an easy task to reach his goal in the competitive hospitality employment sector. After lots of efforts he got an entry level job in front office in a Gold Coast resort named Sheraton Grand Mirage resort where for nearly twenty months he worked as a porter/Guest service agent.In Jan 2018 he found out about a job opening for a Restaurant Manager at Gympie. He applied for the position and luckily was also approved by the company. Considering his skills and qualification his employer decided to sponsor him in RSMS (187) stream so that he could work for his business on long term basis.The nomination and his visa application were lodged in Feb 2018 and as per his contract he had to resume duties after the visa grant therefore to gain further experience in the hospitality industry he had to work wherever he could find a job and eventually in November 2018 he became Night Manager at Ibis/Pullman Hotel Brisbane Airport. Unfortunately, in July 2019 G Fortunes Pty Ltd's employer nomination was refused and consequently his Visa application was also refused which was very stressing and depressing as his dream of gaining experience and then working at the highest position in a five star was being shattered.Reply to the letter dated 02 October 2020 As stated in the letter “G FORTUNE PTY LTD (your nominator) made an application listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa). The position was said to be Restaurant Manager, and nominated you. However, on 1 July 2019 a delegate of the Minister rejected the application. Your nominator did not appeal the nomination refusal decision. This means that there is no approved nomination, and no review of that nomination refusal decision pending, that concerns you. This information is relevant to the review because without an approved nomination, you will not meet an essential criterion for the grant of the visa.” On behalf of our client we state that he is highly confused and shocked to see the letter dated 2 October 2020 because his employer confirmed that the appeal for the nomination refusal was lodged with in the specified time of 21 days. As informed by our client • He was informed by his employer G Fortune PTY LTD that the appeal was lodged in AAT on 12 July 2019 but to be sure he requested his employer to send the acknowledgement letter to him. • Later on, the employer instructed the agent to send a screen shot of the receipt. • The agent did not send the screen shot but sent him the details as under ➢ Tax Invoice/receipt no: [provided]. ➢ The online lodgement number [provided]. ➢ After few days, on the instructions of his employer the agent sent a screen shot of lodgement of the nomination appeal which had the same details. (The screen shot attached as evidence of the lodgement) Our client humbly requests to find out from the concerned office and recheck the details given above. The screen shot confirms that the appeal for nomination refusal was lodged by G Fortune PTY LTD on 12/07/2019 at 3:07:34PM which was also confirmed by the employer. He is very confused and want to know; (i) Whether the appeal for nomination refusal was lodged or not? (ii) Whether the appeal for nomination refusal was withdrawn by the employer after lodgement?

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas.C. PackerMemberATTACHMENT 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

On 16 October 2020 the applicant responded and stated in part:Immigration History of Satpinder SinghHe came to Australia in May 2014 to pursue masters in International Tourism and Hotel management from Southern Cross University. In July 2016 he successfully completed his master degree. After completing his study, he was very enthusiastic to find a job in a five-star hotel and after few years’ experience become manager and later work as General Manager in a five/six-star hotel. He soon realised that it was not an easy task to reach his goal in the competitive hospitality employment sector. After lots of efforts he got an entry level job in front office in a Gold Coast resort named Sheraton Grand Mirage resort where for nearly twenty months he worked as a porter/Guest service agent.In Jan 2018 he found out about a job opening for a Restaurant Manager at Gympie. He applied for the position and luckily was also approved by the company. Considering his skills and qualification his employer decided to sponsor him in RSMS (187) stream so that he could work for his business on long term basis.The nomination and his visa application were lodged in Feb 2018 and as per his contract he had to resume duties after the visa grant therefore to gain further experience in the hospitality industry he had to work wherever he could find a job and eventually in November 2018 he became Night Manager at Ibis/Pullman Hotel Brisbane Airport. Unfortunately, in July 2019 G Fortunes Pty Ltd's employer nomination was refused and consequently his Visa application was also refused which was very stressing and depressing as his dream of gaining experience and then working at the highest position in a five star was being shattered.Reply to the letter dated 02 October 2020 As stated in the letter “G FORTUNE PTY LTD (your nominator) made an application listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa). The position was said to be Restaurant Manager, and nominated you. However, on 1 July 2019 a delegate of the Minister rejected the application. Your nominator did not appeal the nomination refusal decision. This means that there is no approved nomination, and no review of that nomination refusal decision pending, that concerns you. This information is relevant to the review because without an approved nomination, you will not meet an essential criterion for the grant of the visa.” On behalf of our client we state that he is highly confused and shocked to see the letter dated 2 October 2020 because his employer confirmed that the appeal for the nomination refusal was lodged with in the specified time of 21 days. As informed by our client • He was informed by his employer G Fortune PTY LTD that the appeal was lodged in AAT on 12 July 2019 but to be sure he requested his employer to send the acknowledgement letter to him. • Later on, the employer instructed the agent to send a screen shot of the receipt. • The agent did not send the screen shot but sent him the details as under ➢ Tax Invoice/receipt no: [provided]. ➢ The online lodgement number [provided]. ➢ After few days, on the instructions of his employer the agent sent a screen shot of lodgement of the nomination appeal which had the same details. (The screen shot attached as evidence of the lodgement) Our client humbly requests to find out from the concerned office and recheck the details given above. The screen shot confirms that the appeal for nomination refusal was lodged by G Fortune PTY LTD on 12/07/2019 at 3:07:34PM which was also confirmed by the employer. He is very confused and want to know; (i) Whether the appeal for nomination refusal was lodged or not? (ii) Whether the appeal for nomination refusal was withdrawn by the employer after lodgement?