GILL (Migration)

[2020] AATA 760

GILL (Migration) [2020] AATA 760 (12 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Avninder Singh GILL

CASE NUMBER:  1926109

HOME AFFAIRS REFERENCE(S):          BCC2017/4834441

MEMBER:Karen Synon

DATE:12 March 2020

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 12 March 2020 at 5:25pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Motor Mechanic (General) – subject of an approved nomination – nomination application 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 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 18 December 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 (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 ‘Motor Mechanic (General)’.

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 lodged by ‘GEELONG AUTOCARE PTY LTD ATF GEELONG AUTOCARE TRUST’ was refused on 20 July 2019.

6. The applicant applied for review of the primary decision on 17 September 2019 and provided a copy of the department’s decision.

7. On 11 February 2020 the applicant was invited to attend a hearing on 12 March 2020.

8. On 10 March 2020 the applicant requested that the hearing be held via telephone due to his “poor health condition”.  In support of this he provided a generic medical certificate which stated he “will be unfit to continue his usual occupation for the period 11 March to 12 March inclusive”

9. In response on 10 March 2020 the Tribunal advised the applicant via his registered migration agent:

   The Tribunal notes the applicant’s request to conduct his hearing by telephone and advises that it has agreed to this.  It notes that the issue on review is a straight forward matter of whether he is the subject of an approved nomination.

   The applicant must advise the Tribunal today of a telephone number on which he can be contacted throughout the duration of the hearing period and advises that it is his responsibility to be available on the provided number because, if he does not answer, he will be recorded as not having attended the hearing.

10. Later the same day the applicant’s registered migration agent advised the mobile number on which the applicant could be contacted for the hearing.

11. The applicant appeared before the Tribunal on 12 March 2020 to give evidence and present arguments.  At his request the hearing was conducted by telephone.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is cl.187.223.

    Nomination of a position

15. 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.

16. 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.

17. During the hearing the Tribunal explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to the applicant.  As recorded in the primary decision, a copy of which was provided to the Tribunal, this position nomination is no longer available to him as the nomination lodged by ‘GEELONG AUTOCARE PTY LTD ATF GEELONG AUTOCARE TRUST’ was refused on 20 July 2019.

18. Invited to make any submissions the applicant said he had no submissions to make and he wanted the Tribunal to make its decision.

19. Asked if he agreed that the nomination for the occupation of Motor Mechanic (General)’ with ‘GEELONG AUTOCARE PTY LTD ATF GEELONG AUTOCARE TRUST’ was no longer available to him, the applicant said he agreed the nomination was not approved however thinks the position might still be available.  The Tribunal explained that the only nomination that could be used to satisfy cl.187.223 is that which was the subject of the declaration that was required to be made as part of the current visa application.  The applicant said he understands that the Tribunal cannot make a positive decision in his favour in this review.

20. Based on the information before it in the primary decision and the applicant’s evidence the Tribunal finds that the applicant is not the subject of the approved nomination.

21. Therefore, cl.187.233(3) is not met.

22. 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

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

    Karen Synon
    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.