Boparai (Migration)

[2019] AATA 6196

Boparai (Migration) [2019] AATA 6196 (18 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaspinder Singh Boparai

CASE NUMBER:  1835163

HOME AFFAIRS REFERENCE(S):          BCC2017/948069

MEMBER:Phoebe Dunn

DATE:18 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 18 October 2019 at 6:43pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visas – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Motor Mechanic – no approved nomination – nomination withdrawn by employer – applicant’s participation in Job Ready Program – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 187.233; r 1.13

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 10 March 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 ‘Motor Mechanic’ (ANZSCO 321211).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination lodged by Mr Mark Fleming in respect of the applicant, being the nomination referred to in cl.187.233(1), was withdrawn on 14 September 2018, and accordingly there was no approved nomination.

6. The applicant appeared before the Tribunal on 26 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. At the hearing, the Tribunal put information to the applicant under s.359AA of the Act that would be the reason, or a part of the reason, for affirming the decision that is under review.  The Tribunal advised the applicant that the Tribunal was raising the information with the applicant, not because the Tribunal had already made up its mind in relation to the information, but to give the applicant an opportunity to comment on or respond to the information in order to help the Tribunal to make up its mind. The Tribunal explained the relevance of the information and the consequences of it, as follows:

   a.The particulars of the information are that the application for approval of the nominated position made by Mr Mark Fleming in respect of the applicant’s Subclass 187 visa application was withdrawn on 14 September 2018.  Further, a search of the applicant’s Departmental records undertaken by the Tribunal indicates that the applicant is not currently the subject of a nomination by an approved standard business sponsor, and that the applicant is currently on a WB-020 Bridging Visa;

   b.This information is relevant to the review because it suggests that there is not an approved nomination on foot in respect of the applicant and it is a requirement for the grant of the Subclass 187 visa that the position specified in the visa application is the subject of an approved nomination; and

   c.If the Tribunal relies on the information in making its decision, the Tribunal may find that the position specified on the visa application is not the subject of an approved nomination, and that this would mean that the applicant does not satisfy a requirement for the grant of the Subclass 187 visa, and that the Tribunal must affirm the decision that is under review.

8. The Tribunal explained that this would be the reason or part of the reason, for affirming the delegate’s decision to refuse the applicant’s visa application, and invited the applicant to comment on or respond to the information, or to seek additional time to comment on or respond to the information. 

9. In response, the applicant advised the Tribunal that he understands that there is no approved nomination and that the nomination was withdrawn by his employer and as a consequence he does not meet the requirements of the Subclass 187 visa application. In oral evidence, the applicant provided some context for his current situation, noting that he had not commenced work or met the employer at the time the application was refused.  The applicant advised the Tribunal that he is currently on the ‘Job Ready Program’, working full-time in his nominated position as a motor mechanic.  The applicant further advised that he only has a few months to go before he can undertake the testing required under the program and then he will be eligible to apply for a visa under that program. 

10. The applicant requested additional time to provide further details in relation to his current arrangements under the Job Ready Program in response to the information put to the applicant under s.359AA of the Act.  The Tribunal granted the applicant two weeks to comment on or respond to the information, with such comment or response due on 10 October 2019. On 7 October 2019, a response was received by the applicant attaching the documents referenced in paragraph 15 of this decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets cl.187.233.

    Nomination of a position

13. 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.

14. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 of the Regulations); 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.

15. The Tribunal notes the oral evidence given by the applicant at the hearing, referenced in paragraphs 9 and 10 of this decision, and has considered the following information received from the applicant post hearing:

    a.Copies of the applicant’s payslips from Autocrave Pty Ltd for the period from 10 December 2018 to 8 September 2019, as evidence of full-time employment (38 hours per week) in the position of ‘Mechanic’.

16. It is not in dispute that the relevant nomination lodged by Mr Mark Fleming in relation to the applicant was withdrawn on 14 September 2018, and that the applicant is not currently  the subject of an approved nomination as required by cl.187.233(3).  Nor is it in dispute that the applicant is currently on a WB-020 Bridging Visa. The Tribunal accepts that the applicant has made a genuine effort to find work in his nominated position of Motor Mechanic and, on the basis of the information before the Tribunal, has been employed full time in that capacity since December 2018, as a means of securing a new visa through the Job Ready Program.  However, the Tribunal notes that the issue in this case is whether the applicant meets the requirements of cl.187.233, and specifically whether there is an approved nomination as required under cl.187.233(3).  While difficult for the applicant, the Tribunal notes that, in these circumstances, the current employment of the applicant as a motor mechanic is not relevant to this consideration. 

17. In this case, the nomination application referred to in cl.187.233(1) of the applicant’s Subclass 187 visa application was withdrawn on 14 September 2018, and as such there is no approved nomination as required under cl.187.233(3). Accordingly, cl.187.233(3) is not met.

18. Therefore, cl.187.233 is not met.

19. 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

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

    Phoebe Dunn
    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.