Sood (Migration) - [2020] AATA 3475

Sood (Migration) [2020] AATA 3475 (6 July 2020)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Kirti Sood
Mr Harwinder Singh
CASE NUMBER:  1834249
DIBP REFERENCE(S):  BCC2018/1008432
MEMBER:De-Anne Kelly
DATE OF DECISION:  6 July 2020
DATE CORRIGENDUM
SIGNED:8 July 2020
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:

1.The header on the top of each page (that being pages 1 to 5), which states “Version of draft decision reviewed by Legal Services – Legal – In – Confidence” should be removed.

Statement made on 08 July 2020 at 4.39pm
De-Anne Kelly
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Kirti Sood
Mr Harwinder Singh
CASE NUMBER:  1834249
HOME AFFAIRS REFERENCE(S):          BCC2018/1008432
MEMBER:De-Anne Kelly
DATE:6 July 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 06 July 2020 at 11:38am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – no approved nomination – nomination application withdrawn – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13
CASES
Singh v Minister for Home Affairs [2019] FCA 723
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 2 March 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 a nominated position.
The delegate refused to grant the visas because the applicant did not meet cl.187.233(4) of Schedule 2 to the Regulations because the nomination lodged by National Park Pty Ltd being the nomination referred in cl.187.233(1) was withdrawn by a delegate of the then, Minister for Immigration and Border Protection. The employer nomination was withdrawn before it could be approved or rejected.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND…

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

Case: [2020] AATA 3475
Decision Date: 6 July 2020

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 affirmed by the Tribunal. The primary issue was whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant satisfied clause 187.233(3), which stipulates that the Minister must have approved the nomination. This clause, as applicable, required that the nominated position be located in regional Australia, be the subject of an approved nomination application, and that the applicant be identified in relation to the position if the nomination was made on or after 1 July 2017. Further requirements included that the nominator be the prospective employer, that the nomination had been approved and not subsequently withdrawn, that there was no adverse information known to Immigration about the nominator or associated persons, that the position remained available, and that the visa application was made within six months of the nomination approval.

The Tribunal found that the employer nomination had been withdrawn before it could be assessed by the Department, and consequently, the visa application was refused under clause 187.233(4). The applicant sought review of this refusal. The Tribunal also considered a request to postpone a hearing due to medical certificates, but declined it as the certificates did not establish an inability to attend a telephone hearing, referencing the principles in *Singh v Minister for Home Affairs* [2019] FCA 723. Ultimately, the Tribunal concluded that the applicant did not meet the requirements of clause 187.233, specifically that the nomination had not been approved and had been withdrawn.

The Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

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 EVIDENCE The issue in the present case is whether the applicant meets cl.187.233(3) which provides as follows;(3) The Minister has approved the nomination.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 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. Before the Department could assess the employer nomination the delegate of the Minister withdrew the employer nomination and thereafter refused the visa application under cl.187.233(4). After the delegate of the Minister withdrew the employer nomination, the applicants lodged a review application of the refusal of their visa application with the Tribunal on 21 November 2018. The applicant included with the review application the Notification of refusal of application for an Employer Nomination and also the Notice of Decision detailing the reason for the refusal of the visa application being the withdrawal of the employer nomination application. On 10 June 2020 the Tribunal sent to Mrs Kirti Sood and Mr Harwinder Singh, through their registered migration agent an invitation to attend a telephone hearing on 24 June 2020. On the 19 June the Tribunal received a request that the hearing be postponed, and some medical certificates were provided. The Tribunal considered these carefully but declined the request because while the certificates stated the applicant was unable to continue her usual occupation for the period 18 to 23 June, it did not state that she was unable to attend a telephone hearing. The Tribunal was mindful of the Judge’s comments in Singh v Minister for Home Affairs [2019] FCA 723 (23 May 2019) [5].The medical certificate is dated 21 March 2016 and refers to the applicant receiving ‘medical treatment’ (the nature of which is unspecified) and being unfit to continue his usual occupation / study. There is nothing in that document indicating the applicant was unfit to appear before the Tribunal and give evidence. The Tribunal hearing does not require the applicant to engage in his usual occupation or study.

Decision

Reasons for decision

The secondary applicant does not meet cl.187.311 and the Tribunal affirms the decision not to grant Mr Harwinder Singh a Subclass 187 visa.decision The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.De-Anne KellyMemberATTACHMENT 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

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