Sushma Paswan (Migration) - [2019] AATA 5285

Sushma Paswan (Migration) [2019] AATA 5285 (18 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Parneet Kaur Alias Sushma Paswan
Mr Jatinder Singh
Mr Princejeet Singh
CASE NUMBER:  1819365
HOME AFFAIRS REFERENCE(S):          BCC2017/361885
MEMBER:Mr S Norman
DATE:18 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 18 November 2019 at 10:42am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – subject of an approved nomination – nomination application refused – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 Department decision was lodged with the Tribunal.
The applicants applied for the visas on 27 January 2017. 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. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations.
The applicants appeared before the Tribunal on 13 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. 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 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…

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: Sushma Paswan (Migration) [2019] AATA 5285
Case: [2019] AATA 5285
Decision Date: 18 November 2019

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 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant sought to have the decision of the Minister's delegate, which refused the visa, set aside. The Tribunal was required to consider whether the applicant met the criteria for the visa, specifically in relation to the nominated position and the approval of the nomination.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 187.233 of the Migration Regulations 1994, which governs the nomination requirements for the Direct Entry stream of the Subclass 187 visa. This clause requires, among other things, that the nominated position be approved and that the nomination has not been withdrawn. The Tribunal also considered, in the alternative, whether the applicant met the criteria for the Temporary Residence stream (clause 187.223) or the Agreement stream (clause 187.242), and whether any family members qualified based on the primary applicant's eligibility.

The Tribunal affirmed the delegate's decision to refuse the visa. The delegate had refused the nomination application lodged by Annilax Enterprises P/L on 17 May 2018. As the nomination was refused, the delegate was not satisfied that the applicant met clause 187.233(3) or the broader requirements of clause 187.233. Furthermore, the nomination did not meet the requirements for assessment under regulation 5.19(3), meaning the applicant did not satisfy clause 187.223 for the Temporary Residence stream. The position was also not nominated under a labour agreement, precluding eligibility under clause 187.242 for the Agreement stream. As none of the primary criteria were met, family members could not qualify based on their relationship to the applicant. The Tribunal noted that the applicant's nominating employer had subsequently withdrawn their merits review application, and advised the applicant that this withdrawal was relevant as clause 187.233(3) requires an approved nomination.

The Tribunal concluded that the applicant had not met the requirements for the Subclass 187 visa in the Direct Entry stream, nor had they satisfied the criteria for the other streams. Consequently, the Tribunal affirmed the decision not to grant the 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 the 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. On 17 May 2018, the related nomination lodged by Annilax Enterprises P/L, being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister. On 18 May 2018, the Department invited the applicant to comment on this information within a prescribed period. At the time and date of the delegate’s decision, no response had been received. As the nomination application had been refused, the delegate was not satisfied the applicant met cl.187.233(3); or cl.187.233. The delegate also considered the applicant’s claims under the Temporary Residence stream. However, under cl.187.223(1)(a), the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the correlating nomination did not seek to meet the requirements of and was not assessed under r.5.19(3), the applicant did not meet cl.187.223. The delegate also considered the applicant’s claims under the Agreement stream. However, as the correlating position was not nominated by an employer in accordance with a labour agreement, the applicant did not meet cl.187.242. The delegate also considered cl.187.311 (member of the family unit). However, as none of the applicants met the primary criteria for the visa, none were entitled to the visa based on their membership of the family unit of a person who had. The delegate then refused to grant the applicants the Regional Sponsored Migration Scheme (Subclass 187) visa. By s.359A letter dated 1 October 2019 (emailed to the authorised recipient), the Tribunal advised that it had accepted the withdrawal of the merits review application by the applicant’s nominating employer (Annilax Enterprises Pty Ltd). The applicant was advised this information was relevant because cl.187.233(3) required that the nomination made in relation to the applicant by their nominating employer had been approved. The applicant was also advised that if the Tribunal relied on this information it may find that the nomination in relation to the applicant had not been approved and consequently the decision under review would be affirmed. The applicant was then invited to comment in writing by 15 October 2019.

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.Mr S Norman Member ATTACHMENT 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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