Bhangu (Migration)

[2019] AATA 5724

Bhangu (Migration) [2019] AATA 5724 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurveer Singh Bhangu

CASE NUMBER:  1908071

HOME AFFAIRS REFERENCE(S):          BCC2017/2304914

MEMBER:Alan McMurran

DATE:19 December 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 19 December 2019 at 4:18pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry scheme – employer’s application for approval of nomination of position not validly made – no application for review of that decision – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cl 187.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 3 April 2019 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 June 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 Direct Entry stream, to work in the nominated position of Retail Manager (General) 142111.

5. The delegate refused to grant the visa because the applicant did not meet the relevant criteria including cl.187.223 of Schedule 2 to the Regulations, because there was no approved nomination. The Minister had found that there was no nomination application validly made upon which it could decide.

6. On 30 January 2019, the Department had sent a notification to the nominator, advising that for the purposes of subregulation 5.19 (1) of the Regulations, it was a requirement that a person make the application for approval of the nomination of a position in Australia and that the nominator, The Trustee for Wahaa Trust, is not a “person” for the purposes of the sub-regulation. Accordingly, the Department found there was no application for it to consider and refunded the application fee to the nominator.

7. The applicant appeared before the Tribunal on Friday, 13 December 2019 by telephone in a multi-application hearing list to give evidence and present arguments.

8. The applicant was represented in relation to the review by his registered migration agent, Mr Natale Menniti, who did not attend the hearing.

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

   Background

10. The applicant is a 28-year-old citizen of the Republic of India. At the hearing, the Tribunal heard about the applicant’s background coming to Australia as a student in 2014 and his part-time employment in Queensland since that time.

11. The applicant has been working in Cairns since 2014 and in a 24-hour pastry café (314 Pie) for the nominator since June 2017. Details of the nomination application and file were not before the Tribunal.

12. On 22 November 2019, the Tribunal invited the applicant to a hearing to give evidence and present arguments. On 25 November 2019, the applicant requested a postponement via his representative on the basis the applicant had booked tickets to India to attend two family weddings and was not due to return to Australia before 5 February 2020.

13. On 28 November 2019, the Tribunal advised the applicant the postponement request had been refused, and invited the applicant to attend the hearing by telephone from overseas.

14. The Tribunal sent a letter to the applicant to his representative on 28 November 2019 under section 359A of the Act with particulars that the nomination application by the trust was finalised by the Department on 30 January 2019 and that information before the Tribunal suggests no nomination for the position has been approved, and that no application for review had been sought in relation to the nomination application decision.

15. The applicant responded and accepted the Tribunal’s invitation to attend the hearing by telephone. At the hearing, the applicant did not request an interpreter be present. No issues concerning interpretation were raised at the hearing by the applicant and the Tribunal was satisfied the applicant participated and understood the process.

16. The Tribunal explained to the applicant that he could not be employed by a “trust” for the purposes of the Regulations, and that without an approved nomination, the visa application could not succeed, and the purpose of the hearing was to see if the applicant wished to provide any further information or make any other submissions. The applicant had not responded in writing to the natural justice letter and did not wish to make any further comments or submissions at the hearing.

17. The applicant said he had relied upon the application and documents submitted by his representative.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has approved.

19. If any one criterion for the approval of the visa is not met, the Tribunal is not obliged to consider any remaining criteria.

    Criteria for direct entry stream - cl. 187.21

20. Clause 187.212 requires that the nominated position will provide the applicant with the employment referred to in the related nomination application. The employment is referred to by the applicant (at the hearing) as a “store manager” at the pie shop in Cairns where he currently works.

21. Clause 187.223 requires at subregulation (2) that the Minister has approved the nomination for the relevant employment and occupation nominated.

22. For the purposes of the subregulation 5.19 (1), a person can be a “nominator”. The Commonwealth Acts Interpretation Act 1901 defines expressions used to denote “persons” generally to include a body politic or corporate, as well as an individual. Policy provides that a nominator under the employer nominated sponsored program may be an individual, body politic or body corporate. On that basis, a “person” includes an individual, partnership, body politic, body corporate or unincorporated association.

23. Possible business structures which fall within the category defined as “person” may include a sole trader, partnership, proprietary company, public company, government department, statutory authority, or not-for-profit organisation.

24. Where a business structure operates as a trust, the trust is established by a settlor who signs a trust deed, which in turn nominates an appointor who effectively directs the operation of the trust including the appointment of a trustee. The trustee may be a body corporate or an individual.

25. In this instance, the Department found that no trustee has been identified for the nominator as “The Trustee for Wahaa Trust”. For that reason, the Department determined that there was no valid nomination application for it to consider.

26. The Tribunal finds that the Department made a decision notified by letter on 30 January 2019 that the proposed nominator was not a “person” as required by the sub-regulation, and accordingly the nomination was not a valid application. No review was sought of that decision and the Tribunal is unable to review or reconsider that decision in these proceedings, which are dealing only with the visa applicant.

27. As a consequence, the Tribunal finds that there is no nomination for the applicant which has been approved by the Minister, and accordingly the applicant is not the subject of an approved nomination for the occupation of Retail Manager.

28. The Tribunal finds that there is no application to review the refusal of the nomination which is contemplated or underway, or the subject of an application to extend time for the making of such application and upon which the applicant might seek to rely for consideration as a pending decision. No such claim or request is made and no other submissions are made for consideration.

29. The Tribunal finds that cl.187.223 is not met.

30. As one of the essential criteria for approval of the visa has not been met, the Tribunal is not required to consider any further or other criteria in relation to the visa application.

31. 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

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

    Alan McMurran

    Member