Bhullar (Migration)

[2022] AATA 4684

Bhullar (Migration) [2022] AATA 4684 (17 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaswinder Singh Bhullar

REPRESENTATIVE:  Mr Andreas Athanasiou (MARN: 1685134)

CASE NUMBER:  1918544

HOME AFFAIRS REFERENCE(S):          BCC2017/3119728

MEMBER:Susan Reece Jones

DATE:17 December 2022

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 17 December 2022 at 2:43pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cafe or Restaurant Manager – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 187.233; rr 1.13, 5.19

CASES

Hasran v MIAC (2010) 183 FCR 413
M v MIMA (2006) 155 FCR 333
MIMA v Sun (2005) 146 FCR 498

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 29 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 (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 Cafe or Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the nominator’s nomination did not satisfy reg 5.19(4)(h) of the Regulations because the nominator did not demonstrate that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area (namely Geelong, Victoria).

6. On 17 June 2022, the Tribunal wrote via email to the nominator’s representative Mr Andreas Athanasiou of the K& A Associates, pursuant to s.359(2) of the Act to invite the nominator to provide up to date and current information demonstrating that the applicant met all of the applicable r.5.19(4) criteria (not merely the subparagraph that the delegate had found was not met).

7. The nominator was requested to provide the requested information by 1 July 2022 and was advised that if it failed to do so (or failed to ask for an extension of time to do so), by that date, the nominator would lose its entitlement to have someone attend a hearing to present evidence and arguments on its behalf, and the Tribunal might proceed to make its decision without requesting further information.

8. On 5 July 2022 the representative emailed the Tribunal and stated that it was unable to contact the nominator and requested an extension of time to 19 July 2022.

9. As the Tribunal did not receive a response or a request for an extension of time by the due date, the nominator lost its right to a hearing.  

10. If a person is given a formal invitation to provide information under s.359(2) and does not do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information.[1] Moreover, if a person fails to respond to a written invitation within the prescribed period (or as extended), the review applicant also loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review.[2] 

    [1] ss 359C(1), 424C(1). 

    [2] ss 360(3), 425(3).

11. In the case of a review under Part 5 of the Migration Act (under which Part this review application falls), the language of s.363A operates to remove any discretion which the Tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do so.[3] Therefore, once the nominator has lost their entitlement to a hearing, the effect of ss.359C(1), 360(3) and 363A is that the Tribunal has no power to invite the nominator to a hearing.

    [3] Hasran v MIAC (2010) 183 FCR 413 at [26]. This confirms the views expressed in M v MIMA (2006) 155 FCR 333 at [46], and MIMA v Sun (2005) 146 FCR 498, for example.

12. Given the above, the Tribunal found that the applicant lost its entitlement to a hearing due to the failure to provide the requested information (or seek an extension of time to do so) by 1 July 2022, the due date.

13. Accordingly, the Tribunal proceeded to make a decision on the evidence before it and on 31 July 2022, the Tribunal affirmed the decision under review to refuse the nomination.

14. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    vi CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the relevant nomination has been approved as required by cl.187.233.

    The issue in the Nomination of a position

16. 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.

17. 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 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.

    Nominator proceedings

18. As noted above, the delegate’s decision (a copy of which was provided with the applicant’s review application) identified that the application of the nomination by The Trustee for the Burger Unit Trust was refused by the Department on 21 May 2019.

19. On 17 June 2022, the Tribunal wrote via email to the nominator’s representative Mr Andreas Athanasiou of the K& A Associates, pursuant to s.359(2) of the Act to invite the nominator to provide up to date and current information demonstrating that the applicant met all of the applicable r.5.19(4) criteria (not merely the subparagraph that the delegate had found was not met).

20. The nominator was requested to provide the requested information by 1 July 2022 and was advised that if it failed to do so (or failed to ask for an extension of time to do so), by that date, the nominator would lose its entitlement to have someone attend a hearing to present evidence and arguments on its behalf, and the Tribunal might proceed to make its decision without requesting further information.

21. On 5 July 2022 the representative emailed the Tribunal and stated that it was unable to contact the nominator and requested an extension of time to 19 July 2022.

22. As the Tribunal did not receive a response or a request for an extension of time by the due date, the nominator lost its right to a hearing.  

23. If a person is given a formal invitation to provide information under s.359(2) and does not do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information.[4] Moreover, if a person fails to respond to a written invitation within the prescribed period (or as extended), the review applicant also loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review.[5] 

    [4] ss 359C(1), 424C(1). 

    [5] ss 360(3), 425(3).

24. In the case of a review under Part 5 of the Migration Act (under which Part this review application falls), the language of s.363A operates to remove any discretion which the Tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do so.[6] Therefore, once the nominator has lost their entitlement to a hearing, the effect of ss.359C(1), 360(3) and 363A is that the Tribunal has no power to invite the nominator to a hearing.

    [6] Hasran v MIAC (2010) 183 FCR 413 at [26]. This confirms the views expressed in M v MIMA (2006) 155 FCR 333 at [46], and MIMA v Sun (2005) 146 FCR 498, for example.

25. Given the above, the Tribunal found that the applicant lost its entitlement to a hearing due to the failure to provide the requested information (or seek an extension of time to do so) by 1 July 2022, the due date.

26. Accordingly, the Tribunal proceeded to make a decision on the evidence before it and on 31 July 2022, the Tribunal affirmed the decision under review to refuse the nomination.

    Applicant proceedings

27. On 5 August 2022, the Tribunal wrote to the applicant’s representative, Mr Andreas Athanasiou, of Katsaros & Associates, pursuant to s359(A) of the Migration Act 1994 (the Act), inviting the applicant to comment on or respond to certain information. The Tribunal in inviting the applicant to comment on or respond to certain information which the Tribunal may consider, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review, namely that as the Tribunal affirmed the Department’s decision to refuse the nomination. the Department decision to refuse the nomination remains in force and the nominator’s application to have that decision changed was unsuccessful and this means that the nomination has not been approved as required under cl.187.233(3) of Schedule 2 to the Migration Regulations 1994.

28. The applicant was also advised that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the applicant’s visa application is the subject of an approved nomination.

29. The Tribunal received no response or further information to its written request of 5 August 2022. Given the above, the Tribunal finds that the applicant lost its entitlement to a hearing due to the failure to provide the requested information (or seek an extension of time to do so) by 19 August 2022, the due date. Accordingly, the Tribunal considers it reasonable to now proceed to make a decision on the evidence before it.

30. Therefore, given the finding that cl. 187.233 is not met, the appropriate course is to affirm the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

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.

    Susan Reece Jones
    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.