BAJWA (Migration)

[2019] AATA 6163

BAJWA (Migration) [2019] AATA 6163 (16 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr AMRINDER SINGH BAJWA

CASE NUMBER:  1819611

HOME AFFAIRS REFERENCE(S):           BCC2017/1901597

MEMBER:Mr S Norman

DATE:16 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 16 October 2019 at 12:30pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – sponsoring employer’s position nomination refused – application for review of refusal withdrawn – no response to tribunal’s s 359A letter – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(1), (3)

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 29 May 2017. 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 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 Cafe or Restaurant Manager (ANZSCO: 141111).The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

6. 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.

7. 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.

8. On 17 May 2018, the nomination application lodged by Annilax Enterprises Pty Ltd, being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister. On 18 May 2018, the Department invited the applicant to comment about this information. At the time of the delegate’s subsequent decision, no comment had been received. The delegate then found the applicant did not meet cl.187.233(3); or cl.187.233.

9. Next, the delegate assessed the applicant under the Temporary Residence Transition stream. Under regulation 187.223(1)(a), the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the nomination did not seek to meet the requirements of and was not assessed under r.5.19(3), the applicant did not meet cl.187.223. Since clause 187.223 is not satisfied, the delegate refused the visa under the Temporary Residence Transition stream. The delegate then assessed the applicant under the Agreement stream. As the correlating position was not nominated by an employer in accordance with a labour agreement, the applicant did not meet the requirements of cl.187.242. Since cl.187.242 is not satisfied, the criteria for the grant of the visa under the Agreement stream was not satisfied. Next, the delegate assessed the visa application under cl.187.311 (member of the family unit). However, as no applicant met the primary criteria for the grant of the visa, none were entitled to the grant of the visa as a member of the family unit of a person who had.

10. As clause 187.233, 187.223, 187.242 and 187.311 were not satisfied, the delegate refused to grant the Regional Sponsored Migration Scheme (subclass 187) visa.

11. By ‘Withdrawal of application for migration or refugee review – MR Division’ form, the applicant’s nominator withdrew their merits review application with the Tribunal.

12. By s.359A letter of 1 October 2019 (emailed to the authorised recipient), the Tribunal advised the applicant that on 1 October 2019, the Tribunal accepted the withdrawal of the merits review application by their nominator. Further, that this was relevant as cl.187.233(3) requires that the nomination made in relation to the applicant by their nominating employer had been approved; and that if the Tribunal relied on this information, it may find the nomination in relation to the applicant has not been approved and consequently, the decision under review should be affirmed. The Tribunal advised the applicant they should respond in writing by 15 October 2019. No response had been received at the time and date of this decision. In the circumstances of this case, the Tribunal has decided to proceed to a decision without giving the applicant any further chance to respond.

13. That being said, and based on the evidence before the Tribunal, I am satisfied the applicant had not met cl.187.233(3); and that cl.187.233 is not met. 

14. 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

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

    Mr S Norman
    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.