Jakhar (Migration)

[2019] AATA 4938

Jakhar (Migration) [2019] AATA 4938 (7 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sahil Jakhar

CASE NUMBER:  1905787

HOME AFFAIRS REFERENCE(S):           BCC2017/4925557

MEMBER:Phoebe Dunn

DATE:7 November 2019

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 07 November 2019 at 2:23pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Transport Company Manager – subject of an approved nomination – new employer willing to sponsor applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Singh v MIBP [2017] FCAFC 105

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 22 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 (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 Transport Company Manager (ANZSCO 149413).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination lodged by RIRY Pty Ltd in respect of the applicant, being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister on 21 January 2019.

6. The applicant appeared before the Tribunal on 26 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

7. At the hearing, the Tribunal put information to the applicant under s.359AA of the Act that would be the reason, or a part of the reason, for affirming the decision that is under review.  The Tribunal advised the applicant that the Tribunal was raising the information with the applicant, not because the Tribunal had already made up its mind in relation to the information, but to give the applicant an opportunity to comment on or respond to the information in order to help the Tribunal to make up its mind. The Tribunal explained the relevance of the information and the consequences of it, as follows:

   a.The particulars of the information are that the application for approval of the nominated position made by RIRY Pty Ltd in respect of the applicant’s Subclass 187 visa application was refused by a delegate of the Department of Home Affairs on 21 January 2019, and that decision was not appealed by the nominator.  Further, a search of the applicant’s Departmental records undertaken by the Tribunal indicates that the applicant is not currently the subject of a nomination by an approved standard business sponsor, and that the applicant is currently on a WA-010 Bridging visa.

   b.This information is relevant to the review because it suggests that there is not an approved nomination on foot in respect of the applicant as required under cl.187.233(3) of the Regulations and it is a requirement for the grant of the Subclass 187 visa that the position specified in the visa application is the subject of an approved nomination.

   c.If the Tribunal relies on the information in making its decision, the Tribunal may find that the position specified on the visa application is not the subject of an approved nomination, and that this would mean that the applicant does not satisfy a requirement for the grant of the Subclass 187 visa, and that the Tribunal must affirm the decision that is under review.

8. The Tribunal explained that this would be the reason or part of the reason, for affirming the delegate’s decision to refuse the applicant’s visa application, and invited the applicant to comment on or respond to the information, or to seek additional time to comment on or respond to the information. 

9. In response, the applicant advised the Tribunal that he understands that the nomination application was refused, and noted that the nominating company had been ‘taken over by’ another company. The applicant noted that he had not commenced work with the company at the time the application was refused.  The applicant advised the Tribunal that the new company wishes to sponsor him in the nominated position, and have offered him the role, but he does not have a signed contract. 

10. The applicant requested additional time to respond to the information put to the applicant under s.359AA of the Act.  The applicant requested that the Tribunal write to him so that he can show the letter to his migration agent. The Tribunal granted the applicant two weeks to comment on or respond to the information, with such comment or response due on 11 October 2019, and agreed to confirm the details in writing under s.359A of the Act. By letter dated 26 September 2019, the Tribunal wrote to the applicant under s.359A reiterating the matters put to the applicant under s.359AA of the Act, and granting additional time of two weeks to comment on or respond to the information, with such comments or response due on 11 October 2019.

11. At the hearing, the Tribunal also raised with the applicant that there is a non-disclosure certificate under s.376 of the Act on the file, and that the Tribunal had examined the certificate and the information to which the certificate relates and determined it to be valid.  The Tribunal provided the applicant with a copy of the certificate and advised the applicant that the certificate relates to case notes that the delegate certifies would be contrary to the public interest to disclose as it would reveal lawful methods of undertaking investigations and may prejudice the effectiveness of those methods. The Tribunal advised the applicant that the Tribunal had considered the certificate and the information to which it relates and would place no weight on the certificate or the information to which it relates in reaching a decision on the review application as it bares no relevance to the matters under review.  The Tribunal emphasised that the Tribunal would not place any relevance on the material covered by the certificate in reaching a decision in this case.

12. By email dated 11 October 2019, the Tribunal received a request for an extension of time within which to respond to the information put to the applicant under s.359A of the Act.  The Tribunal granted an extension to 25 October 2019.

13. By email sent by the applicant on 25 October 2019 at 4.26 pm, the applicant advised as follows:

    This email is in regards to reply to your email, that my new employer is ready and happy to sponsor me and he is ready to provide all the documents regarding my case. If you require any further documentation from his side for my sponsorship that (sic) please let me know. So, I will provide you all.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

16. 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.

17. 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;

    ·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.

18. The Tribunal notes that the issue before the Tribunal is whether the applicant meets the requirements of cl.187.233, and specifically whether the nomination referenced in cl.187.233(1) of the applicant’s Subclass 187 visa application had been approved as required under cl.187.233(3).

19. At the hearing, the Tribunal emphasised to the applicant that the issue is whether there is an approved nomination in relation to the position specified in the applicant’s visa application, and because there is no approved nomination, he cannot satisfy cl.187.233 of Schedule 2 to the Regulations, and that the Tribunal had no discretion in that regard.

20. The Tribunal notes that in reaching its finding, it has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) considered the provision in cl.187.233 of the Regulations in relation to the requirement to have an approved nomination and stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

21. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, he cannot overcome his current inability to meet cl.187.223 in relation to his application, notwithstanding the submissions referenced in paragraph 13 of this decision that the applicant has a new employer willing to sponsor him.  In this case, the nomination application refered to in cl.187.233(1) of the applicant’s Subclass 187 visa application was refused by a delegate of the Minister on 22 January 2019, and as such there is no approved nomination. The decision in respect of the nomination application is not the subject of review before the Tribunal.  The nomination by RIRY Pty Ltd was specifically linked to his visa application, and that nomination was not, and now cannot be, approved.  Accordingly, cl.187.233(3) is not met.

22. Therefore, cl.187.233 is not met.

23. 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

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

    Phoebe Dunn
    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.