Amrinder Singh (Migration)

[2018] AATA 2347

Amrinder Singh (Migration) [2018] AATA 2347 (22 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amrinder Singh
Mrs Manpreet Kaur
Miss Prabhleen Kaur

CASE NUMBER:  1704161

DIBP REFERENCE(S):  BCC2016/655652

MEMBER:Mary Sheargold

DATE:22 May 2018

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 22 May 2018 at 3:56pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

Practice and Procedure – Request for adjournment – Where application cannot succeed – Request for adjournment refused

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 363(1)(b)
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
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 Immigration and Border Protection 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 15 February 2016. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook. 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.

5. On 2 March 2017, the delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because there is no approved nomination, and because the secondary applicants did not meet the requirements in cl.187.311 of Schedule 2 to the Regulations because the secondary applicants were not members of the family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

6. The Tribunal received an application for review on 8 March 2017, accompanied by a copy of the delegate’s decision.  No further submissions were received.

7. On 18 April 2018, the Tribunal wrote to the applicants in accordance with section 359A of the Act, stating that the application for approval of the nominated position of Cook made by RDS Worldwide was refused by a delegate of the Minister for Immigration, that the nominator had sought a review of the decision, and that on 17 April 2018, the Tribunal affirmed the delegate’s decision to refuse the nomination. The letter stated that this information was relevant to the review because it is a requirement for the grant of the visa that the position specified in the applicants’ visa application is the subject of an approved nomination, and noted that if the Tribunal relied on that information in making its decision, it may find that the position specified in the applicants’ visa application is not the subject of an approved nomination. The Tribunal invited the applicants to give comments on or respond to this information by 2 May 2018.

8. On 1 May 2018, the applicants’ representative wrote to the Tribunal stating that the applicants wished the Tribunal to know that they have a pending Regional Sponsored Migration Scheme visa application before the Department. No further comments or response were given, and a hearing was scheduled.

9. The applicants appeared before the Tribunal on 18 May 2018 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

10. The applicants were represented in relation to the review by their registered migration agent.  However, the representative did not attend the hearing.

11. At the hearing, the applicant requested that the Tribunal adjourn its decision pending the outcome of a new nomination application made on his behalf by a new employer. The applicant advised the Tribunal that he was expecting an outcome on this at some point in the next 5 months. The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617.

    [2] [2012] FMCA 28.

    [3] [2013] HCA 18 (8 May 2013).

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

12. The Tribunal has considered whether, in the circumstances of this case, information that the applicant meets the requirements in cl.187.233 is likely to be forthcoming and whether the applicant has had a fair opportunity to provide relevant information already, and the significance of the information to the applicant.

13. The Tribunal has had regard to the fact that the application was refused by the Department on 2 March 2017 because the delegate concluded that there was no approved nomination.  The applicant submitted a copy of the primary decision record with the review application.  As a result, the Tribunal observes that the applicant has been aware for more than 14 months of the reasons for the nomination application refusal.

14. The applicant has provided no further information to the Tribunal since the application for review was received on 14 February 2017.  The applicant has been aware since at least 18 April 2018 that the nomination application relating to his visa application was refused, and that the Tribunal may rely on that information.  However, other than to say he has a new nomination application on foot, and that he believes his former migration agent gave an inadequate organisational chart to the Department in relation to the nomination application, the applicant has not provided the Tribunal with any comments or response in relation to this. 

15. At the hearing, the applicant acknowledged that he understood that this application is specifically tied to the nomination application made by RDS Worldwide Pty Ltd, and that the Tribunal does not have the discretion to substitute that nomination for an alternative nomination application that may be approved in the future. 

16. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide relevant information and sufficient time to take steps to satisfy the regulatory criteria.  At the hearing, the applicant acknowledged that The Tribunal is not disposed to delay making a decision indefinitely.

17. Accordingly, the Tribunal has decided not to further exercise its discretion under s.363(1)(b) of the Act to adjourn the review to allow the applicant more time in which to demonstrate that he meets the requirements of cl.187.233.

18. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is that there is no approved nomination.

    Nomination of a position

20. 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).

21. 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.

22. The Tribunal finds that the applicant cannot satisfy cl.187.233 of Schedule 2 to the Regulations because the position specified in the visa application is not the subject of an approved nomination. On 17 April 2018, the Tribunal affirmed the decision of the delegate to refuse the nomination by RDS Worldwide Pty Ltd because on the evidence before the Tribunal, it was found unlikely that RDS Worldwide Pty Ltd would have the capacity to employ the applicant on a full-time basis in the position of Cook for at least 2 years. Further, at the hearing, the applicant gave evidence that RDS Worldwide Pty Ltd is no longer operating its business.

23. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[6]

    [6] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

24. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, he cannot overcome his current inability to meet cl.187.233 in relation to his application.  The nomination by RDS Worldwide Pty Ltd was specifically linked to his visa application, and that nomination was not, and now cannot be, approved.

25. Therefore, cl.187.233 is not met.

26. 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.

27. The Tribunal finds that the secondary applicants do not satisfy cl.187.311 because they are not members of the family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria.

28. It follows that the applicants do not satisfy the criteria for the grant of a Subclass 187 visa, and the decision under review must be affirmed.

    DECISION

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

    Mary Sheargold
    Member