VIRK (Migration) - [2018] AATA 2684

VIRK (Migration) [2018] AATA 2684 (21 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yashwinder Singh VIRK
CASE NUMBER:  1726322
DIBP REFERENCE(S):  BCC2017/2328629
MEMBER:Peter Emmerton
DATE:21 June 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:
·cl.187.233 of Schedule 2 to the Regulations

Statement made on 21 June 2018 at 4:59pm
CATCHWORDS
Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – Approval of nomination – Appointment for position approved – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19, 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 Immigration and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 30 June 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.
In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Transport Company Manager. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.
The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination was not approved.
The applicant appeared before the Tribunal on 21 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Houssam El Sayed and Ms A El Sayed from the nominating entity, Aladdin Tyres Pty Ltd. This was combined with the hearing for MRT file ref 1722506.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the nomination has been approved.
In determining the applicants’…

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: VIRK (Migration) [2018] AATA 2684
Case: [2018] AATA 2684
Decision Date: 21 June 2018

CaseChat Overview and Summary

This matter concerned a Regional Employer Nomination (Permanent) visa (Subclass 187) where the applicant’s sponsoring employer had lodged a nomination application on 30 June 2017. The employer’s nomination application was initially refused on 13 October 2017. Subsequently, on 21 June 2018, the Administrative Appeals Tribunal (the Tribunal) set aside the Department’s decision and substituted its own decision, approving the appointment for the position of Transport Company Manager. The current proceedings involved the Tribunal’s reconsideration of the visa applicant’s claims.

The primary legal issue before the Tribunal was whether the nomination for the visa applicant had been approved, as required by clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause outlines several criteria that must be met, including that the position must be the subject of an approved nomination, the nominator must be the prospective employer, there must be no adverse information known to the Department, the position must remain available, and the visa application must be made within six months of the nomination approval.

The Tribunal reasoned that it was satisfied, based on evidence provided in the nomination application and its own previous findings, that the approved position was the same as that which was the subject of the relevant nomination application and the visa application declaration. It also found that the person who would employ the applicant was the nominator. Crucially, in light of the Tribunal’s prior approval of the appointment under regulation 5.19(4), it concluded that the visa applicant now met the requirements of clause 187.233.

Consequently, the Tribunal found that the visa applicant satisfied the criteria specified in clause 187.233. The Tribunal therefore remitted the applications for Subclass 187 visas for reconsideration by the Minister, with the direction that the first applicant meets the requirements of clause 187.233.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the nomination has been approved. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in doing so, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.Nomination of a position For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). 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, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii). 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. On 30 June 2017 the sponsoring employer lodged a nomination for a residence visa under the Regional Employer Nomination (Permanent) (Class RN 187) visa in favour of the visa applicant. On 13 October 2017 the employer’s nomination application was refused. On 21 June 2018, the Tribunal set the Department’s decision aside and substituted a decision approving the appointment for the position of Transport Company Manager.[1] Based on evidence provided in that application, the Tribunal is satisfied the approved position is the same as the one that was the subject of the relevant r.5.19(4)(h)(ii) nomination application. The Tribunal is also satisfied the position is the same as that in the visa application declaration. Therefore cl.187.233(1) is met.[1] See MRT decision file ref. 1722506 The Tribunal relies on its findings in the nomination application to find the person who will employ the applicant is the person who was the nominator in the application for approval. Therefore cl. 187.233(2) is met. In light of the Tribunal’s approval of the appointment under r.5.19(4), the Tribunal finds that the visa applicant now meets the requirements of cl.187.233(3).

Decision

Reasons for decision

The Tribunal therefore finds the visa applicant satisfies the requirements specified in cl.187.233. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:·cl.187.233 of Schedule 2 to the RegulationsPeter EmmertonMember

Ratio Decidendi

Legal Principle Established

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