Bains (Migration)

[2023] AATA 1737

Bains (Migration) [2023] AATA 1737 (10 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhjinder Singh Bains

REPRESENTATIVE:  Mr Wassef Joe Botros (MARN: 1280764)

CASE NUMBER:  1925627

HOME AFFAIRS REFERENCE(S):          BCC2018/2205049

MEMBER:Terrence Baxter

DATE:10 May 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 10 May 2023 at 8:41am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Primary Fruit and Vegetable Inspector – subject of an approved nomination – no response to s.359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 363
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 (Cth) (the Act).

2. The applicant applied for the visa on 22 May 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 (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 Primary Fruit and Vegetable Inspector for Cross Family Farms Pty Ltd (the nominator).

5. The delegate refused to grant the visa on 31 August 2019 because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations which required (inter alia) that he be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 5 August 2019 and that accordingly the applicant did not satisfy cl 187.233 as required.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 12 September 2019.

7. The applicant appeared before the Tribunal on 7 February 2023 to give evidence and present arguments.

8. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether there is an approved 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 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 the 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. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the position of Primary Fruit and Vegetable Inspector approved, with the applicant as nominee, on 16 May 2018. The nomination application was refused on 5 August 2019 and the nominator sought review of that decision with the Tribunal on 15 August 2019.

14. On 20 April 2023, the Tribunal (as presently constituted) affirmed the decision to refuse the nomination.

15. On 24 April 2023, the Tribunal wrote to the applicant pursuant to s 359A of the Act inviting him to comment on or respond to information which the Tribunal considered would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 20 April 2023, the Tribunal affirmed the decision not to grant an Employer
    Nomination lodged by Cross Family Farms Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl 187.233(3).

    If we rely on this information in making our decision, we may find that you do not meet cl 187.233(3), which requires the nomination be approved, and affirm the decision under currently review.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 8 May 2023.

16. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The applicant failed to comment on or respond to the invitation within the prescribed time for commenting on or responding to the invitation. No comment on or response to that invitation has been received by the Tribunal.

17. Where an applicant is invited to comment on or respond to information in accordance with s 359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to s 359C(2) of the Act.

18. The Tribunal has considered whether it should take further action to obtain the applicant’s views on the information referred to in paragraph 15 above. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicant has been aware since 31 August 2019 of the reasons for the visa application being refused, and also that the implications of not providing the information requested in the invitation from the Tribunal of 24 April 2023 were set out in that correspondence. The Tribunal has also taken into account that the applicant was advised at the hearing on 7 February 2023 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by the nominator.

19. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicant’s views on the information referred to in the invitation from the Tribunal of 24 April 2023 or to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that he meets the relevant criteria under cl 187.233 of Schedule 2 to the Regulations.

20. The Tribunal notes that the application for nomination for the position of Primary Fruit and Vegetable Inspector has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application. Accordingly, cl 187.233(3) is not met.

21. Therefore, cl 187.233 is not met.

22. 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

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

    Terrence Baxter
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.