HARPARTAP SINGH (Migration)

[2021] AATA 5656

HARPARTAP SINGH (Migration) [2021] AATA 5656 (15 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  HARPARTAP SINGH

CASE NUMBER:  1814339

HOME AFFAIRS REFERENCE(S):          BCC2016/3427203

MEMBER:Susan Reece Jones

DATE:15 May 2021

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 15 May 2021 at 4:00pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Restaurant Manager – subject of an approved nomination – adverse information – section 376 certificate – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 376
Migration Regulations 1994 (Cth), Schedule 2, cl 187.223

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 15 October 2016. 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 Restaurant Manager (ANZSCO:141111).  

5. On 4 May 2018, the Department refused to grant the visa because the nominator Sardar Saab Enterprises Pty Ltd did not demonstrate that it had the financial capacity to employ the nominee on a full-time basis in the position for at least 2 years as required under regulation 5.19(4)(d). On the basis of the Department’s decision, the applicant could therefore not satisfy cl.187.223, which requires that the nominee be the subject of an approved nomination.

   Nominator proceedings

6. On 16 October 2020, the nominator represented by its sole director Mr Maninder Singh , appeared before the Tribunal to give evidence and present arguments. The nominator was represented by its representative, Ms Jee Han of Australian Immigration Law Services.

7. Following the hearing with the nominator, on 16 October 2020 the nominee also appeared before the Tribunal. The nominee representative Ms Han was in attendance.

8. Following the hearing, on 30 October 2020, the nominator represented again by its sole director Mr Maninder Singh, appeared before the Tribunal in relation to a related case. The nominator was represented again by its representative, Ms Jee Han of Australian Immigration Law Services.

9. At the hearing on 30 October 2020, the Tribunal advised the nominator’s director Mr Singh and the representative that there was potentially adverse material on the Department’s file that had been brought to the Tribunal’s recent attention and it was covered by a valid s.376 certificate. The Certificate allows the Tribunal to have regard to the certified material, and if it thinks appropriate, to disclose it – or the gist of the material contained in it - to the nominator. 

10. The Tribunal is also subject to a general duty to restrict the disclosure of the material, where it would be contrary to the public interest because it may have adverse consequences on the life or physical safety of the identified information provider and their family. Whilst the Tribunal has discretion to disclose the full details of the allegations on the Department file, as disclosure in this case was noted as having the possibility of endangering the safety of the informant, the Tribunal did not disclose any further details.

11. The nominator was advised at hearing on 30 October 2020 that the Tribunal was prevented from disclosing the Department’s actual records to the nominator (although the relevant case law indicated that the Tribunal could nevertheless put the gist of information contained in the certified Department documents to the nominator, if it was relevant and potentially adverse to the nominator’s case).

12. The gist of the information put to the nominator at hearing and contained in the s.376 Non-Disclosure Certificate was that there is an allegation that the restaurant operated by the nominator had in fact been closed for about 2 years and that information relating to the restaurant operation on social media is false and misleading. In addition, the Certificate noted that the nominee is resident in Blacktown, Sydney, may use an alias name and is not actually working at the restaurant.

13. If these circumstances the case that per the allegations received by the Department, that the nominator was not actively operating and that the nominee was not working in the nominated position, the consequences of the Tribunal in relying on this information is that decision under review would be affirmed. This is because if the Tribunal accepted this information to be correct, it would be likely to find that the requirements in r.5.19(4) would note met and this would mean that the applicant did not meet r.5.19(4) as a whole and the Department’s decision to refuse to approve the nomination would have to be affirmed by the Tribunal.

14. The Tribunal adjourned the hearing on 30 October 2020 for 15 minutes so that the nominator director Mr Singh could confer with his representative.  When the hearing resumed, the Tribunal invited Mr Singh, pursuant to s.359AA of the Act, to comment or provide a response to this information, noting that he could do so immediately or could request additional time to do so.

15. On behalf of the nominator, Mr Singh elected to respond at the hearing to this information. He denied the claims and informed the Tribunal that the applicant had been closed for some renovations but that ‘the restaurant is definitely operating’, that it ‘had been closed due to the COVID-19 restrictions for 1-2 months but had recommenced trading’. When questioned by the Tribunal about the social media posts dating back to 2018/2019 and nothing since, Mr Singh provided no response other than to state it was a ‘coincidence’.

16. The nominator’s director Mr Singh did confirm to the Tribunal that he understood that the information is adverse to the nominator’s cases and that he stated that providing evidence to the Tribunal that the nominator is actively trading, ‘should be no problem’. The Tribunal invited the nominator to provide its submissions and evidence by 14 November 2020.

17. On 13 November 2020 the nominator provided some additional evidence to the Tribunal. Having received no further information from the nominator as requested at the hearings, on 22 December 2020 the Tribunal wrote to the representative to invite the nominator to a further hearing on 15 January 2021.

18. At hearing on 15 January 2021, the nominator’s director Mr Singh attended the hearing at the Tribunal. His representative, Ms Han was also in attendance. At that hearing, Mr Singh advised the Tribunal that the nominator wished to withdraw the application for this case and the related cases.

19. On 21 January 2021 pursuant to s359AA, the Tribunal wrote to the nominee to advise that the application for approval of the nominated position made by the nominator was refused by a delegate of the Minister for Immigration and that having sought a review of that decision, the nominator had now withdrawn that application for review. The nominee was also advised that approval of the nominator’s application for the nominated position was relevant to the review because it is a requirement for the grant of the visa that the position specified in this application be the subject of an approved nomination. Further the nominee was advised that in conducting the review, the Tribunal is required by the Migration Act 1958 to invite the nominee to comment on or respond to this information which the Tribunal considers would, subject to the nominee’s comments or response, be the reason, or a part of the reason, for affirming the decision under review

20. On 4 February 2021, the Tribunal received a response from the applicant’s representative to advise only that the nominee did not wish to withdraw his application.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in the present case is whether the relevant nomination has been approved.

    Nomination of a position

23. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

24. In addition, this criterion also requires that:

    ·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 located in regional Australia (as defined in reg 5.19) 

    ·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.

    Nominator proceedings

25. The applicant applied for a visa on the basis of a nomination made by Sardar Saab Enterprises Pty Ltd, (the nominator). The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which he made the relevant declaration at the time of the visa application, was refused by the Department on 3 April 2018.

26. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination.

27. Following hearing on 30 October 2020 (outlined above) which was adjourned, on 15 January 2021, the nominator’s director Mr Singh and representative Ms Han attended a hearing at the Tribunal. At that hearing, Mr Singh advised the Tribunal that the nominator wished to withdraw the application for both this nomination and that of the related cases.

    Applicant proceedings

28. On 21 January 2021 pursuant to s359AA, the Tribunal wrote to the nominee to advise that the application for approval of the nominated position made by the nominator was refused by a delegate of the Minister for Immigration and that having sought a review of that decision, the nominator had now withdrawn that application for review. The nominee was also advised that approval of the nominator’s application for the nominated position was relevant to the review because it is a requirement for the grant of the visa that the position specified in this application be the subject of an approved nomination. Further, the nominee was advised that in conducting the review, the Tribunal is required by the Migration Act 1958 to invite the nominee to comment on or respond to this information which the Tribunal considers would, subject to the nominee’s comments or response, be the reason, or a part of the reason, for affirming the decision under review

29. On 4 February 2021, the nominee’s representative responded to the Tribunal stating that “the review applicant, Mr Harpartap Singh advised me that he does not wish to withdraw his review application.”

30. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

31. Accordingly, the Tribunal finds that cl.187.223 (2) is not met as there is no approved nomination of Sardar Saab Enterprises Pty Ltd and therefore cl.187.223 as a whole cannot be met by the applicant.

32. Therefore, given the finding that cl. 187.223 is not met, the appropriate course is to affirm the decisions not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    decision

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

    Susan Reece Jones
    Member

    
    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position to which the application relates is located in regional Australia.

    (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.