DHILLON (Migration)

[2018] AATA 4233

DHILLON (Migration) [2018] AATA 4233 (13 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GURBIR SINGH DHILLON

CASE NUMBER:  1710146

HOME AFFAIRS REFERENCE(S):           BCC2016/1440323

MEMBER:Jennifer Cripps Watts

DATE:13 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 September 2018 at 12:10pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration – subject of an approved nomination – nomination refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 Immigration and Border Protection 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 13 April 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 (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 Direct Entry stream, to work in the nominated position of Café 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 nomination relating to the application was not approved and the applicant was therefore not the subject of an approved nomination.

6. On 16 August 2018, a written invitation to attend a combined scheduled hearing on 20 September 2018 was sent to both the nominator and the applicant.  The nominator and applicant both responded (separately) to the invitations and informed the Tribunal that they did not wish to attend the scheduled hearing.  In relation to the nominator’s review application, the Tribunal made a decision on the papers and, on 28 August 2018, affirmed the delegate’s decision to refuse the nomination (relating to the applicant’s 187 visa application in this matter).

7. On 29 August 2018, the applicant was sent a s.359A letter informing him that the Tribunal had affirmed the Department’s decision not to approve the nomination made by RAI Property Group Pty Ltd for him in the nominated position of Café or Restaurant Manager.  He was informed that the information was relevant because one of the requirements for the grant of his subclass 187 visa is that he is the subject of an approved nomination.  The applicant was invited to give comments or respond to this information no later than 12 September 2018 or within any extended time period requested by him and granted by the Tribunal.

8. The applicant did not request an extension of time and did not provide a response or comments by 12 September 2018.

9. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

    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 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 and that the applicant is identified in relation to the position. The position must be the one that was the subject of the declaration made as part of the current visa application.

13. Under cl.187.233(3), the position to which the (subclass 187) application relates must be the subject of an approved nomination.  The nomination was affirmed by the Tribunal on 28 August 2018.  The applicant was notified by the Tribunal in writing and invited to comment or respond on the adverse information, in line with statutory requirements.  He did not comment or respond by the required date of 12 September 2018.  He did not request an extension of time to comment or respond.

14. The Tribunal finds that the applicant is not the subject of an approved nomination and he does not satisfy cl.187.233(3).  Therefore, cl.187.233 is not met.

15. 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

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

    Jennifer Cripps Watts
    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.