Gurpreet Singh (Migration)

[2022] AATA 1613

Gurpreet Singh (Migration) [2022] AATA 1613 (18 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gurpreet Singh
Ms Amandeep Kaur

CASE NUMBER:  1903156

HOME AFFAIRS REFERENCE(S):          BCC2017/909791

MEMBER:Susan Trotter

DATE:18 March 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 18 March 2022 at 1:24pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – motor mechanic – subject of approved position nomination – related nomination application refused – nominating company deregistered and no jurisdiction for tribunal to review nomination refusal – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(3), 187.311

CASES
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28

MIAC v Li [2013] HCA 18

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 on 24 January 2019 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 8 March 2017. The first-named applicant (the applicant) is a now 31-year-old citizen of India. The second-named applicant is identified in the visa application as the wife of the applicant.

3. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

4. 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.

5. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Motor Mechanic for Dashmesh Auto Mechanics Pty Ltd, the applicant for approval of a nomination in relation to the nominated position.

6. The secondary applicant applied on the basis of being a member of the family unit of the applicant.

7. The delegate refused to grant the visas on the basis that cl.187.233(3) of Schedule 2 to the Regulations was not met because the associated nomination had not been approved as required. The delegate also found that the secondary applicant could not be granted a Subclass 187 visa, as she did not meet the secondary visa criterion (cl.187.311) requiring her to be a member of the family unit of a person who was the holder of the visa on the basis of having met the primary visa criteria.

8. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 12 February 2019 and provided the Tribunal with a copy of the delegate’s decision.

9. The applicant appeared before the Tribunal by telephone on 14 March 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing in this manner as the hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearing in this manner having regard to the nature of this matter and the circumstances of the applicants. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by video and telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments, given an opportunity to respond to the matters in issue and to fully participate in the hearing.

10. The Tribunal has had regard to the applicant’s oral evidence, the Departmental file, the Tribunal file and the documentation provided by the applicant to the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The primary issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

    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 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:

    (a)  the person who will employ the applicant is the person who made the nomination;

    (b)  the nomination has been approved and has not been subsequently withdrawn;

    (c)   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;

    (d)  the position is still available to the applicant; and

    (e)  the visa application was made no more than six months after the nomination of the position was approved.

15. The Tribunal noted that the delegate’s decision, which was provided by the applicant to the Tribunal, noted that the nomination application lodged by Dashmesh Auto Mechanics Pty Ltd nominating the applicant for the position of Motor Mechanic was refused by the Department on 19 December 2018.

16. The applicant said that when he received a response from the Department, it said that the nomination application by the company was refused but he cannot understand why they refused it. The Tribunal responded that the only matter it could look at was whether there is an approved nomination and the reasons why that decision was made is not relevant to the issue before the Tribunal in relation to this application. The Tribunal noted that that may be an enquiry for the nominating employer. The applicant noted that the company had now been closed.

17. The Tribunal put to the applicant[1] that, additionally, there was information before the Tribunal that following the refusal of the nomination application, the nominator sought review of that decision, and on 19 October 2021 this Tribunal (differently constituted) found that it had no jurisdiction to consider that application because the nominating company was de-registered and no longer operating. The Tribunal explained to the applicant that this information was relevant to the review because the evidence was that there was no approved nomination at the time the Department looked at the matter and that subsequently, the Tribunal had no jurisdiction to consider the application for review in relation to that refusal as the nominating company was later deregistered. The Tribunal noted that if the Tribunal relied upon this and the other information before it and found that there was no approved nomination and no pending review, meaning that there was no prospect that the nomination refusal decision could be changed, it would be the reason or part of the reason to affirm the decision under review to refuse to grant the visa to the applicant as primary applicant, and consequently to also refuse to grant the visa to the secondary applicant.

    [1] Pursuant to procedure set out in section 359AA of the Act

18. The Tribunal checked with the applicant that he understood the information and the relevance of the information, which he did.

19. The applicant was invited to respond to or comment on the information. The applicant responded that the company was de-registered last year but he started working with the company in 2017 and he was supposed to work with them for three years. At the time he spoke to the company owner and he said he had given the Department every document needed. He was doing everything right. It wasn’t his fault. He worked there for three years and did everything he was supposed to. The Tribunal noted that it was not suggested that it was the applicant’s fault but that the only issue the Tribunal could look at is whether there is an approved nomination, and that the reasons that there is not an approved nomination are not matters that the Tribunal could take into account because it has no discretion in relation to the criterion in issue.

20. The applicant sought an adjournment including more time to apply for a new visa. In considering the adjournment request, the Tribunal considered the guidance provided in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making processes. The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment. The Tribunal has accordingly carefully considered all of the circumstances pertaining to the present application for review in considering whether to grant an adjournment. Given the Tribunal has a statutory obligation to pursue the objective of providing a mechanism of review that includes being quick, in circumstances where on the evidence before it there is no evidence that a necessary requirement for the visa is met, or can be met, the Tribunal concluded that it is not appropriate or reasonable to adjourn for any further time. Having determined that a requirement for the visa is not met, the Tribunal is unable to give more time, including in order to allow the applicant to apply for another visa. The Tribunal therefore declined to adjourn as requested.

21. The evidence before the Tribunal indicates that the associated nomination application has been refused, that the Tribunal had no jurisdiction to consider the application lodged by the nominator in relation to the refusal to approve the nomination. There is no evidence of an approved nomination as required. As the relevant nomination has not been approved, and cannot now be approved, it follows that the applicant does not meet the requirements of cl.187.233(3). Therefore, cl.187.233 is not met as a whole.

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 in relation to the applicant must be affirmed.

23. The Tribunal must also affirm the decision not to grant the secondary applicant Subclass 187 visas as they do not meet the secondary visa criterion requiring them to each be a member of the family unit of a person who holds a Subclass 187 visa, and there is no evidence that they meet the primary visa criteria for this subclass in their own right.

    DECISION

24. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Susan Trotter
    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.