Gill (Migration)

[2020] AATA 3904

Gill (Migration) [2020] AATA 3904 (9 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurwinder Singh Gill

CASE NUMBER:  1914278

HOME AFFAIRS REFERENCE(S):          BCC2018/1009957

MEMBER:Bridget Cullen

DATE:9 September 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 9 September 2020 at 10:58am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry scheme – no approved nomination – no response to tribunal communication – no tribunal review of nomination refusal – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359C, 360(3), 363A

Migration Regulations 1994, Schedule 2, cl 187.233(3), rr 1.13A, 1.13B

CASES

Hasran v MIAC [2010] FCAFC 40

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 (the Act).

2. The applicant applied for the visa on 2 March 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 (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(3) of Schedule 2 to the Regulations because the related nomination was refused.

6. On 17 August 2020 the Tribunal wrote to the review applicant pursuant to s.359 and s.359A of the Act, inviting the review applicant to provide information if they were wishing to seek Ministerial Intervention, to assist the Tribunal and comments on information that it considered would be part of the reason for affirming the decision under review in writing.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the information or comments were not provided in writing by 31 August 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information or comments and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicant has not provided the information or comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information or comments.

9. The applicant was represented in relation to the review by his registered migration agent, Mr Michael Vincent Keegan, MARN 1001103 of Auslink Livelihood Development Pty Ltd.

10. Mr Keegan emailed the Tribunal on 3 September 2020, following receipt of the Tribunal’s 17 August 2020 letter, advising that:

    Following your email below, I forward same to the applicant asking him how he wishes to proceed.

    I copy you and he now on the email address that I used which is the only email that I continue to have.

    I have received no response.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant is subject to an approved nomination identifying them in relation to the position.

    Nomination of a position

13. 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.

14. 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 r.1.13A and r.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.

15. Neither the applicant, nor his representative, have revealed to the Tribunal what the applicant’s arguments are. The Tribunal, in sending the 17 August 2020 letter sought to identify this by seeking information. Specifically, the Tribunal requested:

    The particulars of the information are:

    On 2 March 2018, you applied for a Regional Employer Nomination (Permanent)
    (Class RN) (Subclass 187) visa.

    It is a requirement for the grant of the visa that the nomination for the position
    identified in your visa application has been approved. For the purposes of meeting
    cl.187.233(1), you stated that South Indian Restaurant was your nominating
    company.

    The Tribunal has information that on 11 April 2019, the nomination for the position
    identified in your visa application was refused. The decision to refuse the
    nomination has not been reviewed.

    This information is relevant to the review because it suggests that you are not the
    subject of an approved nomination. The criteria which the Tribunal must look at
    requires that the nomination be approved and not withdrawn, as required by
    cl.187.233(3) and cl.187.233(4). Furthermore, lodging a new nomination application
    will not enable you to meet the criteria for this visa application.

16. The Tribunal finds that the applicant’s nomination, made by South Indian Restaurant was refused by the Department on 11 April 2019, and has not been reviewed in the Tribunal. On this basis, the Tribunal finds that the applicant does not meet cl.187.233(3).

17. 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.

18. In the Tribunal’s 17 August 2020 letter, the Tribunal also invited the applicant to provide:

    Information to the Tribunal, if you are intending on requesting Ministerial
    Intervention to assist the Tribunal in determining if it should make a referral to the Minister.

19. As the applicant has not provided the Tribunal with any indication that he was proceeding with the review for the purposes of ultimately seeking Ministerial intervention, and this matter does not fit the Tribunal’s guidelines for Ministerial Intervention, no referral will be made.

    DECISION

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

    Bridget Cullen
    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.