Gurpreet Singh (Migration)

[2020] AATA 1965

Gurpreet Singh (Migration) [2020] AATA 1965 (25 May 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Gurpreet Singh

Mrs Rajwant Kaur

Miss Paawanroop Kaur

CASE NUMBER:  1833805

HOME AFFAIRS REFERENCE(S):           BCC2017/1734291

MEMBER:  Phoebe Dunn

DATE:  25 May 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decisions not to grant the

applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 25 May 2020 at 10:19am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – employer’s position nomination refused – nominating business deregistered – no jurisdiction to review refusal of nomination – no substantive response to tribunal’s s 359A letter – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C(1), 363(1)(b), 363A
Migration Regulations 1994 (Cth), Schedule 2, cll 187.233(3), 187.311

CASES
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship  [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Singh v Minister for Immigration and Border Protection [2014] FCCA 1403
Yang v Minister for Immigration and Citizenship [2010] FMCA 890

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 May 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Chef (ANZSCO 351311).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the related nomination application lodged by RDS Worldwide Pty Ltd (the nominator), being the nomination referred to in cl.187.233(1) (the nomination), was refused by a delegate of the Minister on 15 May 2017, and as such there was no approved nomination.

6. On 15 October 2018 the nominator sought a review of the decision to refuse the nomination. On 5 February 2020 the Tribunal found that it did not have jurisdiction to review the decision to refuse the nomination application because the nominating business had been deregistered and ceased to exist as a legal entity.

7. On 7 April 2020, the Tribunal wrote to the applicants in accordance with s.359A of the Act inviting the applicants to comment on or respond to certain information that the Tribunal considered would, subject to any comments or response from the applicants, be the reason, or part of the reason, for affirming the decision under review, as follows:

   ·     On 15 May 2017, the nominator lodged a nomination application under the Direct Entry stream, nominating the applicant in the nominated position of Chef (ANZSCO 351311) (the nomination), being the nomination in respect of which the applicant’s Subclass 187 visa application declaration was made;

   ·     On 25 September 2018, a delegate of the Minister for Immigration refused the nomination, and on 15 October 2018 the nominator sought a review of that decision;

   ·     On 5 February 2020, the Tribunal found that the Tribunal did not have jurisdiction to review the nomination refusal because the nominating business had been deregistered and ceased to exist as a legal entity; and

   · This means that the nomination has not been approved as required under cl.187.233(3) of Schedule 2 to the Regulations.

8. The Tribunal noted in its letter that this information was relevant to the review because it is a requirement for the grant of a Subclass 187 visa that the position specified in the applicant’s visa application is the subject of an approved nomination. The Tribunal noted further that if

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the Tribunal relied on the information in making its decision, the Tribunal may find that the position specified in the applicant’s visa application is not the subject of an approved nomination, and this would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decisions under review.

1. The applicants were invited to comment on or respond to the information in writing, or to request an extension of time within which to provide comments or respond, by 21 April 2020. The applicants were advised that should the Tribunal not receive any comments or response, or a request for an extension of time within which to comment or respond, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information, and that the applicants would lose any entitlement they may otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

2. By email received on 20 April 2020, the applicants requested an extension of time to comment on or respond to the information on the basis that they had contacted a migration agent to seek advice on their case and needed more time to consult with the migration agent. By letter dated 20 April 2020, the Tribunal granted an extension of time to 5 May 2020, noting again that should the Tribunal not receive any comments or response, or a request for an extension of time within which to comment or respond, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information, and that the applicants would lose any entitlement they may otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal did not receive any comments or response from the applicants within the prescribed period as extended.

3. The Courts have confirmed that where an applicant fails to provide the requested comments or information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.¹ Accordingly, as the applicants failed to comment on or respond to the information within the prescribed period, they have lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

4. By letter dated 11 May 2020, the Tribunal wrote to the applicants noting that as the applicants did not respond to the Tribunal’s letter, or seek a further extension of time within which to respond, within the stipulated timeframe for response, the applicants had lost their right to appear before the Tribunal to give evidence and present arguments. In its letter the Tribunal noted that it would not be making a decision on this case until 17 May 2020 at the earliest, and advised the applicants that they could provide any information or documents that they think would support their case, including commenting on or responding to the information they were invited to comment on or respond to in the Tribunal’s letter dated 7 April 2020, by 17 May 2020.

5. As at the date of this decision the Tribunal has received no further correspondence from the applicants.

6. The Tribunal has considered whether it should exercise its discretion under s.359C(1) of the Act to take further steps to obtain a comment or response from the applicant. The Tribunal has also considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to establish compliance with cl.187.233(3) of Schedule 2 to the Regulations.

   1 Singh v Minister for Immigration and Border Protection [2014] FCCA 1403, 32-39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.

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1. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs² and Manna v Minister for Immigration and Citizenship³ where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li⁴ regarding the application of the principles of reasonableness when exercising its discretion, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh⁵ which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection⁶ where analogous issues were discussed.

2. The Tribunal considered whether, in the circumstances of this case, the information that the first named applicant meets the requirements of cl.187.233(3) of Schedule 2 to the Regulations is likely to be forthcoming and whether the applicants have had a fair opportunity to provide the relevant information already, and the significance of the information to the applicants.

3. The Tribunal considers that the applicants have had a fair opportunity to provide the relevant information to demonstrate that the first named applicant meets the requirements of cl.187.233(3) of Schedule 2 to the Regulations, and that this information has not been forthcoming. In these circumstances, the Tribunal has decided to make a decision on the review without taking further action to obtain the views of the applicants on the information in accordance with s.359C(2) of the Act or without adjourning the review under s.363(1)(b) of the Act to allow the applicants additional time in which to establish compliance with cl.187.233(3) of Schedule 2 to the Regulations.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the related nomination application has been approved.

   Nomination of a position

6. 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.

7. In addition, this criterion also requires that:

   ·         the person who will employ the applicant is the person who made the nomination;

   ·         the nomination has been approved and has not been subsequently withdrawn;

   ² [2002] FCA 617.

   3 [2012] FMCA 28.

   4 [2013] HCA 18.

   5 [2014] FCAFC 1.

   6 [2014] FCA 915.

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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.

1. In this case the related nomination application lodged by RDS Worldwide Pty Ltd, being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister on 25 September 2018. The nominator sought a review of that decision but on 5 February 2020 the Tribunal found that it did not have jurisdiction to review that decision because the nominating business had been deregistered and ceased to exist as a legal entity. This means that the nomination has not been approved as required under cl.187.233(3) of Schedule 2 to the Regulations. It follows that cl.187.233(3) is not met.

2. Accordingly, cl.187.233 is not met.

3. 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.

4. The only basis of the applications of the second and third named applicants is that they are members of the family unit of the person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.187.311(a). As the first named applicant does not meet the primary criteria and has not been granted a Subclass 187 visa, the decision to refuse the applications of the second and third named applicants must also be affirmed because they do not satisfy cl.187.311.

   DECISION

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

   Phoebe Dunn
   Member

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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.

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