Harmanpreet Singh (Migration)

[2022] AATA 1143

Harmanpreet Singh (Migration) [2022] AATA 1143 (24 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Harmanpreet Singh

REPRESENTATIVE:  Mrs Chaman Tiwari (MARN: 1681874)

CASE NUMBER:  1835530

HOME AFFAIRS REFERENCE(S):          BCC2017/4635568

MEMBER:Stephen Witts

DATE:24 February 2022

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 24 February 2022 at 1:28pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager – subject of an approved nomination – no response to s 359A invitation – 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 6 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 (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 retail manager ANZSCO code 142111.

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 delegate was not satisfied that the applicant was the subject of an approved nomination.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the subject of an approved nomination.

   Nomination of a position

8. 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.

9. 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.

10. The Tribunal notes that it wrote to the applicant on 8 February 2022:

    “INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MR HARMANPREET SINGH
    I am writing on instruction from the Member conducting your review, in relation to the
    application for review made by you in respect of a decision to refuse to grant a
    Regional Employer Nomination (Permanent) visa.
    In conducting the review, we are required by the Migration Act 1958 to invite you to
    comment on or respond to certain information which we consider would, subject to
    your comments or response, be the reason, or a part of the reason, for affirming the
    decision under review.
    Please note, however, that we have not made up our mind about the information.
    The particulars of the information are:
     The application for approval of the nominated position made by SOOCH FAMILY TRUST (the nominator) was refused by a delegate of the
    Minister for Immigration. The nominator sought a review of that decision but it was
    recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.

    This information is relevant to the review because it is a requirement for the grant of
    the visa that the position specified in your visa application is the subject of an
    approved nomination.
    If we rely on this information in making our decision, we may find that the position
    specified in your visa application is not the subject of an approved nomination. This
    would mean that you do not satisfy a requirement for the grant of the visa and that we
    must affirm the decision that is under review.
    You are invited to give comments on or respond to the above information in writing
    Your comments or response should be received by 22 February 2022. If the
    comments or response are in a language other than English, they must be
    accompanied by an English translation from an accredited translator.
    If you cannot provide your written comments or response by 22 February 2022, you
    may ask us for an extension of time in which to provide the comments or response. If
    you make such a request, it must be received by us by 22 February 2022 and you must state the reason why the extension of time is required.
    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.
    If we do not receive your comments or response within the period allowed or as
    extended, we may make a decision on the review without taking any further action to
    obtain your views on the information. You will also lose any entitlement you might
    otherwise have had under the Migration Act 1958 to appear before us to give
    evidence and present arguments.
    If you have any questions, please email [email protected], or contact me on the
    number listed below, or telephone our national enquiry line on 1800 228 333. For
    language assistance, please contact the Translating and Interpreting Service (TIS) on
    131 450.”

11. The Tribunal notes that no response was received by the Tribunal in regard to this communication.

12. The Tribunal also notes that the applicant did respond to the hearing invitation but did not respond to the above request so after careful consideration the Tribunal has decided to make a decision on the material before it.

13. On that basis and noting that no evidence has been provided by the applicant the Tribunal finds that the applicant is not the subject of an approved nomination.

14. Therefore, cl 187.233 is not met.

15. 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

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

    Stephen Witts
    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.