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

1. 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).

2. 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).

3. 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.

4. 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.

5. 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.

6. 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.

7. The Tribunal received a review application from the applicants on 13 November 2018, which was accompanied by a copy of the delegate’s decision.

8. The applicant appeared before the Tribunal on 14 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. 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

10.    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.

11.    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.

12.    On 7 November 2018, the Department wrote to the applicants informing them that the RSMS Nomination application lodged by Caliopi Buck on 3 October 2018 was refused. The applicants were further notified that as a result of the refusal of the application lodged by Caliopi Buck in relation to the applicant, their applications for Regional Employer Nomination (subclass 187) visas were refused as the applicant did not satisfy cl.187.233.  The applicants subsequently sought a review by the Tribunal of the Department’s decision.

13.    On 2 April 2019, the Tribunal invited the applicants to attend a call-over meeting on 17 April 2019 to discuss their case. The applicants were invited to provide any evidence that demonstrates the position identified in the visa application as now being the subject of an approved nomination. The applicants were also advised in that letter from the Tribunal that if the applicant’s position is not the subject of an approved nomination, he will not be able to satisfy the requirement in cl.187.233 for grant of the visa and the decisions under review would have to be affirmed by the Tribunal.

14.    The applicant attended the call-over on 17 April 2019. However, he did not provide any further evidence or materials in support of the visa now being the subject of an approved nomination.

15.    At the call-over, the applicant asked for more time to lodge a new visa application. The applicant was advised at the call-over that because the position for which the applicant had applied is not subject of an approved nomination, his visa cannot be granted.

16.    On 24 May 2019, the Tribunal invited the applicant to attend a hearing on 14 June 2019 to give evidence and present arguments relating to the issues in the applicant’s case. 

17.    The applicant was advised at the hearing that it is the Tribunal’s view that the review application in relation to his subclass 187 visa application cannot succeed because the original nomination of the applicant by Caliopi Buck was refused and there is no approved nomination of the applicant as a Chef by that employer.

18.    At the hearing, the applicant put forward that he had ‘moved away’ from his original employer Caliopi Buck and has been working as a Chef for the past 11 months for a new employer, Eynesbury Homestead Golf Club, in regional Victoria.

19.    The applicant advised the Tribunal that he had also paid a substantial sum of money to a migration agent to assist him with his visa applications, and that he was distressed because the consequences of the refusal to grant the visa for his family are significant.  

20.    The Tribunal acknowledged the applicant’s distress and discussed its legal interpretation of cl 186.223 and cl 187.233 respectively with him; namely, that it is a legal requirement for the Temporary Residence Transition and Direct Entry streams that the nomination by an employer be approved in order for the applicant’s visa to be successful. 

21.    The Tribunal advised the applicant that it the relevant legislation meant that the requirements under his current visa application could not be satisfied by a later nomination made by a different employer; nor, on current authority, by a nomination in respect of the same position made by the same employer.

22.    This was the view taken in Singh v MIBP [2017] FCAFC 105. 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 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 that 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.

23.    The Tribunal considers that although the Court’s comments were strictly obiter, they are nonetheless highly persuasive in relation to subclass 187 visas. Moreover, this view is consistent with the view taken in another decision, Kaur v Minister for Immigration and Border Protection [2017] FCCA 564, in which the Court cited with approval the previous case of Hasan v Minister for Border Protection [2016] FCCA 1049, to the effect that the nomination relied upon to satisfy cl.187.233 must be the one which had been made at the time of the visa application and could not be a later nomination , even if the later nomination were made by the same employer in relation to the same position at the time of the visa application.

24.    It follows from this that in practice where a nomination is refused or withdrawn, the visa applicant will not meet cl 187.233 (unless there is also a review of any decision to refuse the nomination which is pending. There is no evidence that this is the case here).

25.    Moreover, as also discussed at the hearing, legislative changes took place on 18 March 2018 which affect this case. On that date, the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457(Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r 5.19 and replaced it with a new version. While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is a post 18 March 2018 nomination cannot satisfy cl.187.233 in relation to a subclass 187 visa application made prior to 18 March 2018 , as the case is here.

26.    Therefore given the above, the Tribunal finds that cl.187.233(3) is not met by the applicant and thus he does not meet cl.187.233 as a whole.

27.    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 in relation to him.

28.    In relation to the second and third visa applicants (being the applicant’s wife and older son), the Tribunal must affirm the decision not to grant the second and third visa named applicants in subclass 187 visas, as they do not meet the secondary visa criteria to members of the family unit of a person who holds a subclass 187 visa, and there is no evidence that they meet the primary visa criteria in their own right.

29.    The applicant’s youngest son born in Australia on 7 July 2018 was not included in the original visa application or the Department refusal decision and hence this decision considers only the second and third visa applicants.   

DECISION

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

Alison Mercer
Member

ATTACHMENT A

187.233(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.