BHULLAR (Migration)

[2018] AATA 3900

BHULLAR (Migration) [2018] AATA 3900 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sandeep Singh BHULLAR
Ms Mandeep Kaur RATTU

CASE NUMBER:  1615206

HOME AFFAIRS REFERENCE(S):   BCC2015/3384671

MEMBER:Ian Berry

DATE:17 September 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 17 September 2018 at 8:37am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) – Subclass 187 (Regional Sponsored Migration Scheme) –direct entry stream – nominated position of café or restaurant manager – Tribunal affirms nomination refusal – Decision made on review – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 5.19 Schedule 2 cls 187.233, 187.311

CASES

Hasran v MIAC [2010] FCAFC 40

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 Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 November 2015. 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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of café or restaurant manager (ANZSCO 141111)

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because he did not have a valid nomination on the basis of the nominator not satisfying the delegate that it met r.5.19(4)(a)(ii).

6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant has nominator under r. 187.233.

   Nomination of a position

9. 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.

10.    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.

11.    On 21 August 2018, the applicant’s employer nominator’s application was refused.

12. On 27 August 2018, the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing.

13.    The information upon which the applicants were invited to comment are:

a.On 17 November 2015, the Primary Applicant lodged an application for a Regional Employer Nomination (Permanent) visa with then Department of Immigration and Border Protection (the Department).

b.On 26 July 2016, the nominator Chinchilla (Australia) Enterprises Pty Ltd, had its nomination application (nomination) refused by the Department. The nominator lodged an application for review of this decision with the Tribunal on 12 August 2018.

c.On 12 August 2018, the Tribunal affirmed the Department’s decision with the Tribunal.

d.The above information is relevant to the review because if the primary applicant cannot satisfy the criteria in clause 187.233 then the visa application cannot be granted.

e.If we rely on this information in making our decision, we may affirm the decision made by the Department.

14.    The invitation was sent to the last address provided in connection with the review and advised that, if the comments not provided in writing by 10 September 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

15. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

16.    The Tribunal has not been satisfied the applicant has a valid nomination of which he is a nominee and his employer is the nominator.

17.    Therefore, cl.187.233 is not met.

18.     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.

19.    In relation to the second named applicant, as the applicant has not met cl.187.233, the second named applicant does not meet cl. 187.311.

DECISION

20.    The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Ian Berry
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.