Dhaliwal (Migration)

[2023] AATA 1489

Dhaliwal (Migration) [2023] AATA 1489 (18 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tejinder Singh Dhaliwal

REPRESENTATIVE:  Mrs Priya Patel

CASE NUMBER:  1918836

HOME AFFAIRS REFERENCE(S):          BCC2017/3117787

MEMBER:De-Anne Kelly

DATE:18 May 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 18 May 2023 at 4:08pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Primary Products Inspector – no approved nomination – nomination review application withdrawn – decision under review affirmed  

LEGISLATION

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

CASES

Minister for Immigration and Citizenship v Li [2013] HCA 18

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 Primary Products Inspector.

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 employer nomination by the Trustee for the Geeta Soomal Family was refused being the application referred to in cl 187.233(1).

6. The applicant appeared before the Tribunal on 3 May 2023 to give evidence and present arguments. This was a Multi Applicant Hearing List MAHL by telephone and the introductory remarks were given to the applicants as a group and then each was contacted individually to discuss their case and provide evidence.

7. The applicant was represented in relation to the review.

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

   Section 359AA of the Act

9. At the commencement of the hearing, the Tribunal explained that it may 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 and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.

10. Section 359AA provides as follows:

    (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)   if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant satisfies cl 187.233(3) which provides.

    (3)       The Minister has approved the nomination.

    Nomination of a position

12. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

13. 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 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.

14.   The Tribunal put to the applicant under s359AA of the Act the information that when the employer nomination was refused the employer lodged a review application with the Tribunal which was withdrawn by the nominator and accepted by the Tribunal on 25 July 2022. This may be part or all of the reason to affirm the decision to refuse the visa application by the primary applicant.

1. The applicant chose to respond in the hearing and explained that he was nominated in 2017 but the application was refused and then the employer closed the business, and he is working elsewhere. He has attempted to contact the employer, but they have not responded. He is aware that the review is doomed, and he has a skills assessment for another visa application for a 491 visa. He wants further time for the new application and has asked for an adjournment.

2. In the request for an adjournment, the Tribunal is guided by Minister for Immigration and Citizenship v Li.  Unlike Li where the adjournment was requested for a “highly specific purpose” namely a pivotal piece of evidence that would determine whether the review was affirmed or set aside; the applicant has asked on the basis that he wishes to prepare another visa application. Such a request is not consistent with the Courts finding and as such the Tribunal has declined to grant an adjournment.

3. The applicant was provided 14 days and to make further submissions however no further communication was received from the applicant.

4. The Tribunal finds it is reasonable to proceed to a decision on this matter.

5. There is no approved employer nomination to satisfy cl 187.233(3) and it is not met.

6. Therefore, cl 187.233 is not met.

7. 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

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

   De-Anne Kelly
   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.