Jagseer (Migration)

[2022] AATA 3496

Jagseer (Migration) [2022] AATA 3496 (28 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Singh Jagseer

CASE NUMBER:  2006366

HOME AFFAIRS REFERENCE(S):          BCC2019/5531477

MEMBER:Nicola Findson

DATE:28 September 2022

PLACE OF DECISION:  Perth

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

Statement made on 28 September 2022 at 4:56pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Mechanical Engineer – subject of an approved nomination – no response to s 359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40

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 3 November 2019. 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 Mechanical Engineer (ANZSCO 233512).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, because there was no approved nomination.

6. On 30 March 2020, the applicant applied to the Tribunal for review of the Department’s decision, and with the application provided a copy of the delegate’s decision record.

7. On 8 September 2022 the Tribunal wrote to the review applicant pursuant to s 359A of the Act, and invited him to comment on the following information that it considered would be the reason, or part of the reason, for affirming the decision under review:

   On 16 January 2020, the Tribunal received an application for review of the decision

   of the Department of Home Affairs to refuse a nomination in respect of SAN SHAI
   ENTERPRISES PTY LTD. On 23 April 2021, the Tribunal found that it had no
   jurisdiction to review the Department’s decision to refuse the nomination.
   Consequently, the decision made by the Department of Home Affairs on 31
   December 2019, to refuse the nomination, stands.

   The letter indicated that the above information was relevant because the Tribunal may find
   that the applicant did not meet the requirements of cl 187.233, which requires there to be an
   approved nomination in relation to the applicant.

8. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 22 September 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

10. The Tribunal is satisfied that its invitation to provide comments on the adverse information was delivered to the correct email address for the applicant.  To date, the requested comments have not been provided and the applicant has not made any contact with the Tribunal to indicate that the comments are forthcoming.  The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

12. 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.

13. 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.

14. On the basis of the information before it, the Tribunal finds that at the time the applicant lodged his visa application on 3 November 2019, he was the subject of a nomination application by San Shai Enterprises Pty Ltd for the position of Mechanical Engineer.  The Tribunal further finds that the nomination application made by San Shai Enterprises Pty Ltd was refused by the Department on 31 December 2019, and, although San Shai Enterprises Pty Ltd sought review of the refused nomination, on 23 April 2021 the Tribunal (differently constituted) found it had no jurisdiction to review the Department’s decision to refuse the nomination.

15. As the nomination for the position has not been approved, the Tribunal finds that the requirement in cl 187.233(3) is not met. 

16. It follows that cl 187.233 is not met.

17. 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

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

    Nicola Findson
    Member

    
    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.