Arshdeep Singh (Migration)

[2020] AATA 1201

Arshdeep Singh (Migration) [2020] AATA 1201 (13 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arshdeep Singh

CASE NUMBER:  1930189

HOME AFFAIRS REFERENCE(S):          BCC2018/898335

MEMBER:Karen Synon

DATE:13 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 13 April 2020 at 3:12pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Motor Mechanic (General) – subject of an approved nomination – 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

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 February 2018.  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. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Motor Mechanic (General)’.

5. 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 lodged by ‘THE TRUSTEE FOR WARDS FAMILY TRUST’ was refused on 2 September 2019.

6. The applicant applied for review of the primary decision on 24 October 2019 and provided a copy of the primary decision.

7. The applicant appeared before the Tribunal on 7 April 2020 to give evidence and present arguments.

8. The applicant was represented in relation to the review by his registered migration agent.  He did not attend the hearing.

9. The Tribunal exercised its discretion to hold the hearing by telephone.  The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the straight forward nature of this matter and the individual circumstances of the applicant.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is cl.187.223.

    Nomination of a position

12. 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.

13. 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.

14. During the hearing the Tribunal explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to the applicant.  As recorded in the primary decision, a copy of which was provided to the Tribunal, this position nomination is no longer available to him as the nomination lodged by ‘THE TRUSTEE FOR WARDS FAMILY TRUST’ was refused on 2 September 2019.

15. Invited to make any submissions the applicant said he applied for the visa and was not informed by his employer that he had closed the workshop in Queensland.  He never started work there.  He is now working full time as a motor mechanic in Adelaide.  He does not think that the nomination for the occupation of Motor Mechanic with the ‘THE TRUSTEE FOR WARDS FAMLY TRUST’ is still available to him.  The applicant said he is ready to move to the visa area and to lodge another nomination.

16. Based on the information before it in the primary decision and on the applicant’s own evidence, the Tribunal finds that the applicant is not the subject of an approved nomination.

17. Therefore, cl.187.233 is not met.

18. 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

19. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Karen Synon
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.