Thapa (Migration) - [2019] AATA 4705

Thapa (Migration) [2019] AATA 4705 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Kamal Thapa
Ms Mina Bista
Master Navyug Thapa
CASE NUMBER:  1833287
HOME AFFAIRS REFERENCE(S):           BCC2017/928652
MEMBER:Alison Mercer
DATE:5 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
Statement made on 05 July 2019 at 5:25pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – employer’s nomination application refused – no application for review of refusal – applicant now working for different employer – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cls 186.223, 187.233

CASES

Hasan v Minister for Border Protection [2016] FCCA 1049

Kaur v Minister for Immigration and Border Protection [2017] FCCA 564

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 9 March 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, to work in the nominated position of Chef.
The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the RSMS Nomination application under the Direct Entry (DE) Stream lodged by Caliopi Buck, the applicant’s proposed employer, was refused. The delegate found that the applicant therefore did not meet cl.187.233.
The delegate also refused to grant the second and third named applicants (the applicant’s wife and child) subclass 187 visas on the basis that they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 187 visa, and there was no evidence that they met the primary visa criteria in their own right.
The Tribunal received a review application from the applicants on 13 November 2018, which was accompanied by a copy of the delegate’s decision.
The applicant appeared before the Tribunal on 14 June 2019 to give…

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 Thapa (Migration)

Details

AGLC: Thapa (Migration) [2019] AATA 4705
Case: [2019] AATA 4705
Decision Date: 5 July 2019

CaseChat Overview and Summary

The applicant, Mr. Thapa, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to affirm the refusal of his employer's nomination application for a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream. The employer's nomination was refused, and no application for review of that refusal was made. Mr. Thapa was subsequently employed by a different entity. The matter came before Mercer J in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to affirm the refusal of the employer's nomination was affected by jurisdictional error. This involved considering whether the Minister had properly applied the relevant legislative provisions and whether the decision-maker had taken into account all relevant considerations and disregarded irrelevant ones.

Mercer J affirmed the Minister's decision, finding no jurisdictional error. The Court reasoned that the employer's nomination had been refused, and no review of that refusal had been sought. Consequently, the basis for Mr. Thapa's visa application, which relied on a valid employer nomination, no longer existed. The fact that Mr. Thapa was now working for a different employer did not cure the fundamental defect in the original nomination. The Court applied the principles of administrative law, emphasizing that a visa application is dependent on the validity of the underlying nomination.

Orders