HUNDAL (Migration)

[2019] AATA 3182

HUNDAL (Migration) [2019] AATA 3182 (25 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parampreet Singh HUNDAL

CASE NUMBER:  1804303

HOME AFFAIRS REFERENCE(S):          BCC2016/4024695

MEMBER:R. Skaros

DATE:25 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 July 2019 at 9:13am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – subject of an approved nomination – nomination application refused – nominating entity deregistered – no discretion – position no longer available – 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 29 November 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 (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 Direct Entry stream, to work in the nominated position with Bukhari Pty Ltd.

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 of the position lodged by Bukhari Pty Ltd in relation to the applicant was not approved.

6. The applicant appeared before the Tribunal by telephone on 9 July 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the associated nomination has been approved.

   Nomination of a position

9. 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. In addition, this criterion also requires that the nomination has been approved.

10. The applicant applied for the visa on the basis of a nomination of a position made by Bukhari Pty Ltd (the associated nomination). On 22 December 2017 the associated nomination was refused by the Department. Consequently, the applicant’s visa application was also refused. 

11. The applicant applied for review of the decision to refuse the visa. The nominator also applied for review of the decision refusing the associated nomination, however, on 5 March 2019 the Tribunal found that it did not have jurisdiction to review the Department’s decision refusing the associated nomination as the nominating entity had been deregistered.

12. At the hearing, the Tribunal discussed with the applicant the requirement in cl.187.233 and the evidence before it indicating that the associated nomination had been refused and that the nominating entity has since been deregistered. The applicant gave evidence that the representative had informed him of the refusal by the representative. The applicant did not appear to have full knowledge of the nominator’s circumstances.

13. In accordance with the procedure in s.359AA, the Tribunal informed the applicant that Departmental records indicate that the nomination, against which he made the required declaration in his visa application, was refused by the Department on 22 December 2017 and that even though the nominator applied for review of that decision, the Tribunal’s records indicate that the Tribunal found it had no jurisdiction to review the decision to refuse the associated nomination. The Tribunal also noted that a current search of the ASIC Register also indicated that the nominator had been deregistered on 12 December 2018. The Tribunal explained to the applicant the relevance of the information and informed the applicant that if it relied on the information it would go on to find that the relevant nomination in relation to him has not been approved and that the nominated position was no longer available to him. The Tribunal further explained that it may then go on to find that he does not meet cl.187.233 and that in the circumstances the decision under review would be affirmed.

14. When asked if he wished to request additional time to respond to the information, the applicant requested a few minutes to consider his response. After several minutes the applicant stated that he worked for Subway and applied for the position of store manager at the Lithgow store. The applicant stated that he is an experienced manager. He gave evidence that he worked for the nominator for the required period of time after the nomination was lodged. He stated that he had to travel to India and that after he returned he found out that the nomination was refused. He was told not to worry about the refusal and that the employer would apply for review. The applicant stated that he continued to work for the nominator during this time and was not aware that the business would shut down. The applicant gave evidence that the business ceased operating and he has no idea why it had closed down but this has put him in an awkward position and he cannot do anything about it. The applicant stated that the proprietor of the business had family issues. The applicant stated that he was not informed that the business would close and that he has since moved to another business where he is currently employed as a manager and chef.

15. The Tribunal acknowledged the applicant’s evidence but explained to the applicant that it had no discretion to take into account the reasons for why the nominating business has closed or to take into account his personal circumstances.  The Tribunal noted that its task was limited to the issue of the nominated position and status of the nomination. The applicant stated that he wanted the nominating employer to appear before the Tribunal and explain why the business had deregistered.  The Tribunal explained to the applicant that it accepts his evidence but noted that the nominating entity has now been deregistered and that the nominated position is no longer available.

16. The Tribunal acknowledges the difficulties stated by the applicant. The Tribunal also acknowledges the applicant’s wish for the Tribunal to take evidence from the nominating employer about the reasons for why the business has been deregistered, however, as explained to the applicant at the hearing, the Tribunal must make its decision in accordance with the relevant legislative provisions. There is no provision in the legislation to take into account the reasons for why the business closed down and the nominating entity being deregistered. Nor is there any provision in the legislation to take into account the personal circumstances of the applicant. 

17. The issue before the Tribunal is whether the associated nomination has been approved. The evidence before the Tribunal indicates that the nomination for the position lodged by Bukhari Pty Ltd, about which the visa applicant made the required declaration in the visa application, has been refused. A review of the decision to refuse the nomination was not determined by the Tribunal as it found that it had no jurisdiction in that matter.  In the circumstances, the Department’s decision refusing the associated nomination stands. As the relevant nomination has been refused, it follows that the applicant does not meet the requirements in cl.187.233(3).

18. Further to the above, the evidence before the Tribunal also indicates that Bukhari Pty Ltd has been deregistered and on this basis the Tribunal also finds that the position is no longer available to the applicant. Therefore cl.187.233(5) is also not met.

19. 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

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

    R. Skaros
    Senior 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.