Gill (Migration)

[2021] AATA 5368

Gill (Migration) [2021] AATA 5368 (30 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpreet Singh Gill

CASE NUMBER:  1829173

HOME AFFAIRS REFERENCE(S):          BCC2017/893898

MEMBER:Sean Baker

DATE:30 November 2021

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 30 November 2021 at 4:07pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cafe or Restaurant Manager – subject of an approved nomination – 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 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 7 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 (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 Cafe or Restaurant Manager. The nominator is SRMS Pty Ltd.

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 Department refused the nomination of SRMS Pty Ltd.

6. The applicant appeared before the Tribunal on 30 November 2021 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the nomination has been approved as required under cl. 187.233(3)

   Nomination of a position

10. 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.

11. 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.

12. On 8 November 2021 the Tribunal sent the applicant a letter pursuant to s.359A which set out adverse information and invited him to comment or respond to that information. The information is that on 17 May 2021 the Tribunal (differently constituted) affirmed the decision of the Department to refuse the nomination of SRMS Pty Ltd. The letter explained to the applicant the relevance and consequence if this information were to be relied on.

13. The applicant responded to the letter. He provided his work history as well as documents which he claimed established that the nomination should have been approved by the Department. He did not dispute that the nomination had been refused and that this refusal had been affirmed by the Department. He asked for the approval of the nomination and application. Attached were documents relating to the nomination.

14. At the hearing I explained that the nomination had been refused and affirmed by a differently constituted member. The applicant indicated he understood. He reiterated that he believed the employer had provided all of the information required to the Department. I explained that even if this was the case, this did not appear to me to go to my consideration of his satisfaction of cl. 187.233. The applicant indicated he understood.

15. I find that the nomination identified in cl. 187.233 is that of SRMS Pty Ltd in relation to the applicant in relation to the nominated position of Cafe or Restaurant Manager.

16. I find that on 17 May 2021 the Tribunal (differently constituted) affirmed the decision of the Department to refuse that nomination of SRMS Pty Ltd.

17. I find that the nomination has been refused and this refusal has been affirmed by the Tribunal. I find therefore that the applicant does not satisfy cl. 187.233(3) because the nomination has not been approved.

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.

    Sean Baker
    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.