Gagandeep Singh (Migration)

[2021] AATA 267

Gagandeep Singh (Migration) [2021] AATA 267 (8 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gagandeep Singh

CASE NUMBER:  1909524

HOME AFFAIRS REFERENCE(S):          BCC2018/949247

MEMBER:Sheridan Lee

DATE:8 February 2021

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 8 February 2021 at 4:32 pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – refusal of related nomination application affirmed on review – information that applicant left Australia but no withdrawal of application – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

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 27 February 2018. 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 Chef.

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 position to which the application relates was not the subject of an approved nomination.

6. The applicant was invited to appear before the Tribunal on 12 November 2020 to give evidence and present arguments. On the morning of the hearing, the Tribunal was advised by the applicant’s representative that he had exited Australia and wished to withdraw the application. Unfortunately, insufficient information was provided and the Tribunal was unable to accept the withdrawal. The Tribunal requested additional information and provided the representative with a copy of a standard withdrawal form. No further correspondence has been received at the time of this decision.

7. 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

8. 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.

9. The applicant’s visa application was refused on 15 April 2019 on the basis that the nomination application lodged by his prospective employer was refused. As such, the applicant was not the subject of an approved nomination, as requires by cl.187.233(3). The applicant applied to the Tribunal for merits review on 16 April 2020. A copy of the decision record was provided to the Tribunal on review.

10. Superb Chefs Pty Ltd applied to nominate the applicant to work in the occupation of Chef. The nomination application was refused by the Department on 8 March 2019 and the company applied to the Tribunal for merits review of that decision.

11. The applicant was aware of the reason for the refusal of his visa from the date he was notified by the Department. He made no submissions to indicate that he was the subject or an approved or pending nomination. The applicant was invited to attend a Tribunal hearing at which the above information would have been discussed, however he failed to attend. In the circumstances, the Tribunal finds that the applicant is not the subject of an approved nomination. Therefore, cl 187.233(3) is not met.

12. 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

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

    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

    (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.