Sinhalage (Migration) - [2020] AATA 4116

Sinhalage (Migration) [2020] AATA 4116 (15 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Thushara Wasantha Piyasena Sinhalage
CASE NUMBER:  1924477
HOME AFFAIRS REFERENCE(S):          BCC2018/2786290
MEMBER:Alison Mercer
DATE:15 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 15 September 2020 at 12:38pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Carpenter –nomination refused–no jurisdiction to review nomination refusal decision – company was deregistered – Ministerial intervention referral request –not the subject of an approved nomination–decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351,359,
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 186.311
CASES
Hasan v Minister for Border Protection [2016] FCCA 1049
Kaur v Minister for Immigration and Border Protection [2017] FCCA 564
Singh v Minister for Immigration and Border Protection [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 on 12 August 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 25 July 2018. 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 Labour Agreement stream.
In the present case, the applicant is seeking the visa in Temporary Residence Transition (TRT) stream, to work in the nominated position of Carpenter.
The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, which required him to be the subject of an approved employer nomination. The delegate noted that the nomination of the applicant made by his employer, Sightway Constructions Pty Ltd, was refused by the Department on 25 June 2019 and he had not made any claims against the Direct Entry or Labour Agreement streams.
The Tribunal received a review application from the applicant on 2 September 2019, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Noeline Smart, to be his representative and authorised recipient for correspondence.
On 3 June 2020, the Tribunal wrote to the applicant to invite him to attend a hearing via teleconference (due to COVID19…

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 Sinhalage (Migration)

Details

AGLC: Sinhalage (Migration) [2020] AATA 4116
Case: [2020] AATA 4116
Decision Date: 15 September 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision concerning Mr. Sinhalage's application for an Employer Nomination (Permanent) (Class EN) visa, subclass 186, Temporary Residence Transition stream. The dispute arose when the nomination for Mr. Sinhalage's position, made by his employer Sightways Construction Pty Ltd, was refused by the Department. The Tribunal was asked to review this refusal.

The primary legal issue before the Tribunal was whether Mr. Sinhalage met the criteria for the subclass 186 visa, specifically clause 186.223, which requires an approved nomination. The Tribunal also considered the implications of the employer company being deregistered and the subsequent inability to review the nomination refusal.

The Tribunal reasoned that clause 186.223 requires the nomination to have been approved and not subsequently withdrawn. It noted that the employer's nomination was refused, and a subsequent attempt to review that refusal was unsuccessful because the employer company had been deregistered. Therefore, the Tribunal found that Mr. Sinhalage was not the subject of an approved nomination. This conclusion was supported by the reasoning in *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, which held that a subsequent, new nomination would not satisfy the criterion as it would not be the nomination in relation to which the visa applicant made the required declaration.

Consequently, the Tribunal affirmed the decision not to grant Mr. Sinhalage the visa, as he failed to meet the essential requirement of having an approved nomination. The Tribunal also noted that it declined to refer the matter to the Minister for discretionary intervention due to insufficient evidence of unique or compelling circumstances.

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 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, this criterion also requires that:·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 set out in the delegate’s decision (a copy of which was provided to the Tribunal with the review application), the nomination of the applicant for a subclass 186 visa made by the applicant’s employer, Sightways Construction Pty Ltd, was refused by the Department on 25 June 2019. As advised by the applicant and his agent at the hearing, the employer did seek review of that decision, but the Tribunal (differently constituted) found that it had no jurisdiction to review that decision after Sightways was deregistered. Accordingly, the Tribunal finds that the applicant is not the subject of an approved nomination. Under the circumstances, the Tribunal must find that the applicant does not meet cl.186.223(2) or (3) and thus does not meet cl.186.223 as a whole. There is no evidence that the applicant is the subject of an approved nomination by another employer, and even if he were, the Tribunal’s view is that this would not satisfy cl.186.223. This was the view taken in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (which concerned an almost identically worded criterion for a subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the 'position' referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.

Decision

Reasons for decision

However, it is not satisfied that these factors alone are sufficient to fall within 1 or more of the guidelines set out above, or are otherwise unique, as there is insufficient evidence before the Tribunal to establish that. It therefore declines to refer the matter to the Minister but notes that it remains open to the applicant and his agent to do so themselves, if they believe that the applicant’s circumstances fall within the Ministerial guidelines or are otherwise unique and/or compelling. DECISION The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.Alison MercerMember Alison MercerMemberATTACHMENT A186.223(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 subregulation 5.19(3); and(b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and(c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.(2) The Minister has approved the nomination.(3) The nomination has not subsequently been withdrawn.(3A) 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.(4) The position is still available to the applicant.(5) 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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