Brar (Migration)

[2021] AATA 1316

Brar (Migration) [2021] AATA 1316 (17 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rajwinder Singh Brar
Mrs Manpreet Kaur

CASE NUMBER:  1816499

HOME AFFAIRS REFERENCE(S):          BCC2016/3627922

MEMBER:Sheridan Lee

DATE:17 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 17 March 2021 at 3:07 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Restaurant Manager – subject of an approved nomination – no response to s.359A invitation – decision under review affirmed

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

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 1 November 2016. 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application made by the applicant’s prospective employer, Curry Brothers Pty Ltd, was refused.

6. On 16 February 2021, the applicants were invited to attend a hearing via telephone to give evidence and present arguments in relation to their case, scheduled for 17 March 2021.

7. On 23 February 2021, the Tribunal invited the applicants to comment on or respond to information pursuant to s.359A of the Act. The particulars of the information were:

   The application for approval of the nominated position made by Curry Brothers was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but it was recently affirmed by the Tribunal. This means that the nominator’s application for the nominated position was not approved.

8. The letter outlined that the information was relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

9. It was also explained that the information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse the grant of the visas.

10. The invitation advised that if the comment or response was not provided in writing by 9 March 2021, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s views on the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

11. On 4 March 2021, the applicant’s migration agent, Ambika Kushwaha, submitted a ‘change of contact details’ form to the Tribunal. The form was signed by the applicant and withdrew authorisation for Ms Kushwaha to act as his representative. No further information was provided with the form.

12. No comments, response or request for an extension of time was received in relation to the invitation issued to the applicant on 23 February 2021. Consequently, on 12 March 2021, the Tribunal wrote to advise the applicant that the scheduled hearing had been cancelled and he had lost the entitlement to appear before the Tribunal.

13. On 15 March 2021, the applicant emailed the Tribunal to confirm that he received the letter notifying him of the cancellation of his hearing. The applicant advised that he thought his agent must have responded to the s.359A invitation, but when he contacted her, she told him that she hadn’t. The applicant requested to participate in a hearing. The applicant again emailed on 16 March 2021 to confirm that he would like to participate in the scheduled hearing and provided his contact number.

14. On 16 March 2021, the Tribunal sent a final letter to the applicant to confirm that his hearing was cancelled. The letter again advised that the Tribunal did not receive any comment or response to the letter of 23 February 2021, nor did the applicant request an extension of time to provide comments or respond. This was outlined to the applicant as a consequence of failing to respond in the original correspondence.

15. Once an applicant has lost their entitlement to a hearing, the effect of ss 359C(2), 360(3) and 363A is that the Tribunal has no power to invite the applicant to a hearing.[1] In circumstances where the Tribunal has issued a hearing invitation and the applicant subsequently fails to respond to a s 359A invitation within the prescribed period, s360(3) operates with the effect that the applicant will no longer be entitled to attend the scheduled hearing and the Tribunal is required to deny the applicant a hearing before it.[2] 

    [1] Hasran v MIAC (2010) 183 FCR 413at [26]–[29].

    [2] Giri v MIAC [2011] FMCA 282 at [21], [29]. Upheld on appeal: Giri v MIAC [2011] 928.

16. Having considered the limited scope of the review before the Tribunal and the nature and circumstances of the case, the Tribunal has elected to proceed to make a decision without requesting further information. In particular, the Tribunal notes that the key issue was put to the applicant in both the decision of the Department, which was provided to the Tribunal on review, and in the invitation issued by the Tribunal on 23 February 2021. The applicant has not provided any information to address the key issue or to indicate that he now meets the criteria for the grant of the visa.

17. 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

18. 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.

19. 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.

20. As outlined above, the nomination application related to the visa application was refused by a delegate of the Minister. On 7 October 2020, the Tribunal affirmed the decision to refuse the nomination. Consequently, the Tribunal finds that the position is not the subject of a nomination approved by the Minister as required by cl.186.233.

21. 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.

22. As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second named applicant does not satisfy the secondary criteria for a grant of a visa, on the basis that she is not a member of a family unit of a person who holds a Subclass 187 visa.

    DECISION

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

    Sheridan Lee
    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.