singh (Migration) - [2017] AATA 418

singh (Migration) [2017] AATA 418 (7 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gaurang Singh
Mrs Chhavi Rani
Ms Raj Nandini Singh
CASE NUMBER:  1515392
DIBP REFERENCE(S):  BCC2014/123723
MEMBER:Bruce Henry
DATE:7 March 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:
·cl.186.212 of Schedule 2 to the Regulations.

Statement made on 07 March 2017 at 3:12pm
CATCHWORDS
Employer Nomination (Permanent)(Class EN) visa – Subclass 186 (Employer Nomination Scheme) –- Employer offer of permanent position - ANZCO occupation list – Position must match approved nomination – Not working in the nominated occupation - – Management of records - No intention of working entirely in the nomination position
LEGISLATION
Migration Act, 1958 – s 65
Migration Regulations 1994, Schedule 2 – cl.186.212
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 Immigration on 23 October 2015 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied to the Department of Immigration for the visas on 14 January 2014. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.
In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Records Manager (ANZSCO 224214) at Spencer College Pty Ltd in Brisbane. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.
The delegate refused to grant the visas because the applicant did not meet cl.186.212 of Schedule 2 to the Regulations because the applicant had not been working in the nominated occupation of Records Manager for the entire period that he held a subclass 457 visa and did not intend to work entirely in the nominated position of Records Manager in the future.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE

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) [2017] AATA 418
Case: [2017] AATA 418
Decision Date: 7 March 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Gaurang Singh against a decision to refuse his application for a Subclass 186 (Employer Nomination Scheme) visa. The dispute centred on whether Mr Singh had been, and intended to be, employed in the nominated occupation of Records Manager (ANZSCO 224214). The Administrative Appeals Tribunal (AAT) was required to determine if Mr Singh met the requirements of clause 186.212 of Schedule 2 to the Migration Regulations 1994.

The core legal issue before the Tribunal was whether the nominated position would provide Mr Singh with the employment referred to in the nomination, and whether the occupation specified in the visa application precisely matched the approved nomination. This required an assessment of the evidence regarding Mr Singh's actual duties and his intentions for future employment. The Department's policy stipulated that the position must align with the nomination, and the ANZSCO occupation must match exactly, unless there was contrary information.

The Tribunal found that Mr Singh had not been working in the nominated occupation of Records Manager for the entire period he held a Subclass 457 visa, nor did he intend to work entirely in that role in the future. This conclusion was based on the evidence gathered during a site visit, where the General Manager of the sponsoring business initially stated that Mr Singh's duties were split between teaching and records management. While a later statutory declaration from the General Manager asserted Mr Singh was employed full-time as a Records Manager, the Tribunal found the initial statement to be more credible due to the lack of explanation for the inconsistency. Similarly, statements made by the Academic Manager during the site visit, indicating Mr Singh was employed as a teacher, were found to be more credible than his subsequent statutory declaration.

Consequently, the Tribunal determined that Mr Singh did not satisfy clause 186.212. However, rather than affirming the refusal, the Tribunal remitted the visa applications to the Minister for reconsideration, with a direction that Mr Singh met the criteria under clause 186.212.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets cl.186.212, which requires that the nominated position will provide the applicant with the employment referred to the related nomination application. The Department’s policy on this matter states[1]:The position to which the visa application relates must provide the applicant with the employment referred to in the nomination. Additionally, the occupation to which the position relates, which is provided as an ANZSCO occupation upon visa application, must match exactly to the approved nomination. Officers may without further enquiry consider this criterion satisfied provided:· the employment contract provided by the visa applicant supports that assessment· the occupation on the approved nomination matches the occupation provided on the visa application form and· no other information or evidence to the contrary has been received.[1] PAM3, Home > Migration > 2014 > 01/01/2014 - 13/02/2014 > P. 01/01/2014 - 13/02/2014 > PAM3 - MIGRATION REGULATIONS - SCHEDULES > Sch2 Visa 186 - Employer Nomination Scheme > DIRECT ENTRY STREAM, paragraph 21 The decision to refuse the visa is explained in the decision record of the delegate, a copy of which the applicant has provided to the Tribunal, as follows:Mr Gaurang Singh applied for a subclass 186 visa on 14 January 2014 in relation to an approved nominated occupation of ‘Records Manager (ANZSCO 224214)’. Integrity checks were conducted to verify the duties of Mr Gaurang Singh. During this site visit on 15 December 2014, the General Manager of the sponsorship business, Mr Gurnam Singh, confirmed that Mr Gaurang Singh has been working in a position other than the nominated position for the entire period of his employment.During the site visit, Department of Immigration and Border Protection officers were advised by an employee at reception that Mr Gaurang Singh is employed as a teacher. The General manager of Spencer College also advised officers that Mr Gaurang Singh’s duties were split between his role as a Records Manager and teacher and that Mr Gaurang Singh has been undertaking these duties since the start of his employment in 2011. The site visit officers concluded that Mr Gaurang Singh had not been working in the nominated occupation of Records Manager for the entire period that he held a 457 and that Mr Gaurang Singh did not intend to work entirely in the nominated position of Records Manager in the future.The position to which the visa application relates must provide Mr Gaurang Singh with the employment referred to in the nomination (as Records Manager). The occupation, to which the position relates, which is provided as an ANZSCO occupation upon visa application, must match exactly to the approved nomination.On 26 August 2015, Mr Gaurang Singh was given 28 days to comment on the Department of Immigration and Border Protection (DIBP) findings.On 23 September 2015, Mr Gaurang Singh provided supporting documents including at least 37 statutory declarations from students in addition to statutory declarations from the Academic Manager Mr Kulwant Singh, the General Manager Mr Gurnam Singh, and an unsigned response letter to the Department’s invitation to comment on DIBP officers’ findings.I note that during the site visit conducted on 15 December 2014, Mr Gurnam Singh stated that Mr Gaurang Singh’s duties were evenly split between being a teacher and a Records Manager. Mr Gaurang Singh has provided a statement dated 29th January 2015 from Mr Gurnam Singh in which he has declared that Mr Gaurang Singh is employed full time in the capacity of a Records manager. I find that this statement is inconsistent with the information Mr Gurnam Singh provided to the DIBP officers during the site visit on 15 December 2014.Mr Gurnam Singh has not provided any explanation for the inconsistency. Therefore, I find the initial statements made by Mr Gurnam Singh during the site visit on 15 December 2014 to be more credible.I also note that during the site visit, Mr Kulwant Singh adviced officers that Mr Gaurang Singh is employed as a teacher. Mr Kulwant Singh has provided a statutory declaration dated 1 June 2015 indicating that on the day of the visit he was filling for the receptionist who was off for the day. Mr Kulwant Singh indicated that he does not recall informing officers that Mr Gaurang Singh is employed as a teacher at the College. He also confirmed that “…I could not have said that because he is not a teacher…” I find that both statements provided to DIBP officers and in his statutory declaration are inconsistent and cannot both be accurate.Therefore, I find the initial statement made by Mr Kulwant Singh during the site visit on 15 December 2014 to be more credible.Based on the above, I find that Mr Gaurang Singh had not been working in the nominated occupation of Records Manager for the entire period that he held a Subclass 457 visa and that Mr Gaurang Singh did not intend to work entirely in the nominated position of Records Manager in the future.Therefore, Mr Gaurang Singh does not satisfy clause 186.212.

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:·cl.186.212 of Schedule 2 to the Regulations.Bruce HenryMember

Ratio Decidendi

Legal Principle Established

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