Bagga (Migration)

[2022] AATA 781

Bagga (Migration) [2022] AATA 781 (31 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rohit Kumar Bagga

REPRESENTATIVE:  Miss Amen Karim

CASE NUMBER:  1900878

HOME AFFAIRS REFERENCE(S):          BCC2016/2860253

MEMBER:De-Anne Kelly

DATE:31 March 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 31 March 2022 at 2:28pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Employer Nomination Scheme) – direct entry stream – retail manager – subject of approved position nomination – related nomination application refused – business closed and applicant now working for another employer – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(1), (3)

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

2. The applicant applied for the visa on 29 August 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 (Cth) (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the employer nomination by The Trustee for Paddy ‘N’ Pound Family Trust was refused by the delegate being the application referred to in cl.187.233(1).

6. The applicant appeared before the Tribunal on 16 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

7. The applicant was represented in relation to the review.

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

   Interpretation

9. A number of times during the hearing the Tribunal asked if the interpretation was clear and understood and this was confirmed. Answers to enquiries by the Tribunal were in context and indicated that the interpretation was understood.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets cl.187.233(3) which provides as follows.

    3) The Minister has approved the nomination.

    Nomination of a position

11. 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.

12. 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 reg 1.13A and reg 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.

13. The Tribunal put to the applicant under s359AA of the Migration Act 1958 that the employer nomination refusal by The Trustee for Paddy N Pound Family Trust Pty Ltd was affirmed on 15 September 2021 and as such there was no approved employer nomination to satisfy cl.187.233(3) and this may be part or all of the reason to affirm the decision under review.

14. The applicant chose to respond in the hearing and also had 14 days to make a written response. The applicant understands that there is no employer nomination, and he was employed by the nominator and they were importing materials and after two months he could only join them when the visa was granted. He went to the store and found it closed and he does not know what to do and they have no funds to continue the business. He is working for another employer and the Tribunal advised that while it cannot give migration advice the Courts have found that these applications are a “once off” and it is not possible to link another employer nomination to the existing visa application.

15. In Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (14 July 2017) by Judges Jagot, Bromberg and Mortimer JJ it was stated.

    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).

16. The applicant did not make any further submissions.

17. There is no approved employer nomination to satisfy cl.187.233(3)

18. Therefore, cl 187.233(3) and cl187.233 are not met.

19. 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

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

    De-Anne Kelly
    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.