Bhangu (Migration)

[2019] AATA 3996

Bhangu (Migration) [2019] AATA 3996 (14 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Talwinder Singh Bhangu

CASE NUMBER:  1837113

HOME AFFAIRS REFERENCE(S):           BCC2017/3084159

MEMBER:Alison Mercer

DATE:14 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 14 August 2019 at 3:31pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Cook – the nomination of the applicant was withdrawn by employer–  not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 362
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

CASES
Hassan v MIBP [2106] FCCA 1049
Kaur v MIBP [2017] FCCA 564
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 (the Act).

2. The applicant applied for the visa on 26 August 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 Cook.

5. The delegate refused to grant the visa because she found that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, which required that the applicant was the subject of an approved nomination by an Australian employer. The delegate found that the nomination of the applicant lodged by GAB Group Pty Ltd was withdrawn by that employer on 7 November 2018. The delegate found that the applicant therefore did not satisfy cl.187.233(3) and thus did not meet cl.187.233 as a whole. The delegate further found that the applicant did not meet the threshold requirements for either of the other subclass 187 visa streams, being the Temporary Residence Transition and Labour Agreement streams.

6. The Tribunal received a review application from the applicant on 18 December 2018, which was accompanied by a copy of the delegate’s decision.

7. The applicant was invited to attend a call over hearing at the Tribunal on 17 April 2019, but did not attend that hearing.

8. On 24 May 2019, the Tribunal wrote to the applicant to invite him to a hearing on 14 June 2019. The letter advised him that if he did not attend, the Tribunal might dismiss his application for review or might proceed to make its decision on the available evidence. The letter also advised the applicant that it appeared that he was not currently the subject of an approved nomination by the employer who originally nominated him, as was required by cl.187.233 for a class 187 visa application made in the Direct Entry stream. The letter noted that it appeared that the original nomination of the applicant had not been approved and that this indicated that he could not meet cl.187.233 and could not now do so.

9. The applicant did not attend the hearing on 14 June 2019 and did not ask for the hearing to be rescheduled. On the same date, the Tribunal dismissed the applicant’s review application pursuant to s.362B(1A)(b) of the Act. It notified the applicant of this by letter dated 17 June 2019, which also provided information to the applicant about applying to have his review application reinstated. He was advised that he had 14 days to do so.

10. On 1 July 2019, the applicant sent an email to the Tribunal in which he stated that he scrolled past the hearing invitation email by accident and therefore did not attend the hearing on 14 June 2019.  He noted that the Tribunal dismissal notification indicated that texts had been sent to his nominated mobile phone number on 2 occasions prior to the hearing, but indicated that he did not receive these. The Tribunal notes that the mobile number he included in this email is 1 digit different to the mobile number he provided in his review application form, indicating that the Tribunal sent SMS messages to the incorrect mobile number he initially supplied.

11. On 10 July 2019, the Tribunal decided to reinstate the review application, and notified the applicant of this.

12. The applicant appeared before the Tribunal on 16 July 2019 to give evidence and present arguments.

13. The applicant told the Tribunal that his original employer had 2 restaurants, and that he had worked at both of them over a 2 year period. Then his employer opened a new restaurant in Wallan and they sent the applicant to work there for 2 to 3 days per week. The applicant said that he didn’t know at the time that his employer had withdrawn its nomination of him, nor why.  He said that he did not find until 6 months after it happened, when he received his visa refusal decision, which stated that this was the reason.  He noted that his employer had cut his shifts in the meantime, but not completely. The applicant said that he did try to ring his employers after he found out the nomination had been withdrawn and they told him that the business had slowed down, and they then stopped returning his calls.

14. The applicant said that he had to apply for his visa in August 2017 because his student visa was about to expire. Since the nomination was withdrawn, the applicant said he worked as a Cook on a casual basis at a restaurant in Sunbury.  He said that he had worked for 3 or 4 different places since then but none of those employers were willing to sponsor him under the new scheme because he was required to have 2 years of full time work experience.

15. The applicant confirmed that he had completed a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality but his total studies amounted to less than the 94 week required to apply for a subclass 482 visa (the successor visa to the now closed subclass 457 visa program). Otherwise, he thought he may have been able to get sponsored for a subclass 482 visa.

16. 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

17. 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.

18. 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.

19. It was conceded by the applicant at the hearing that the nomination made in connection with her subclass 187 visa application, made by the GAB Group Pty Ltd was withdrawn by that employer on 7 November 2018.

20. As discussed with the applicant at hearing, it is the Tribunal's view that the review application in relation to his subclass 187 visa application cannot succeed because the original nomination of him by GAB Group Pty Ltd was withdrawn, and there is no approved nomination of the applicant as a Cook by that employer.

21. It is a requirement for both the Temporary Residence Transition and Direct Entry streams (cl.186.223 and cl.187.233 respectively) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made.

22. It is clear that this requirement could not be satisfied by a later nomination made by a different employer, and on current authority, a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.

23. This was the view taken in Singh v MIBP [2017] FCAFC 105. The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event; that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the 'position' referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.

24. The Tribunal considers that although the Court's comments were strictly obiter, they are nonetheless highly persuasive in relation to subclass 187 visas.  Moreover, this view is consistent with the view taken in another decision, Kaur v Minister for Immigration and Border Protection [2017] FCCA 564, in which the Court cited with approval the previous case of Hasan v Minister for Border Protection [2016] FCCA 1049, to the effect that the nomination relied upon to satisfy cl.187.233 must be the one which had been made at the time of the visa application and could not be a later nomination, even if the later nomination were made by the same employer in relation to the same position as the nomination made at the time of the visa application.

25. It follows from this that in practice where a nomination is refused or withdrawn, the visa applicant will not meet cl.187.233 (unless there is also a review of any decision to refuse the nomination which is pending. This is not the case here).

26. Moreover, as also discussed at the hearing, legislative changes took place on 18 March 2018 which affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version. While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.187.233 in relation to a subclass 187 visa application made prior to 18 March 2018, as is the case here.

27. Therefore, given the above, the Tribunal finds that cl.187.233(3) is not met by the applicant and thus she does not meet cl.187.233 as a whole.

28. 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 in relation to him.

    DECISION

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

    Alison Mercer
    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.