Jasbir Singh (Migration)

[2023] AATA 2608

Jasbir Singh (Migration) [2023] AATA 2608 (2 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Jasbir Singh
Mrs Seema

REPRESENTATIVE:  Ms Athina Stephanou (MARN: 0103875)

CASE NUMBER:  1930652

HOME AFFAIRS REFERENCE(S):          BCC2017/717202

MEMBER:Karen McNamara

DATE:2 August 2023

PLACE OF DECISION:  Sydney

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

·The Tribunal does not have jurisdiction in this matter in relation to the second named applicant.

Statement made on 02 August 2023 at 2:12pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cook – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338, 347, 359
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 February 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 first named applicant Mr Jasbir Singh (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position/occupation of Cook (ANZSCO-351411).

5. On 9 October 2019, the delegate refused to grant the visas because Mr Jasbir Singh did not meet cl.187.233 of Schedule 2 to the Regulations which required Mr Jasbir Singh to be the subject of an approved nomination. The delegate found that the nomination lodged by East Bundaberg Sports Club Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs on 5 September 2019.

6. Accordingly, as the nomination application had been refused, the delegate found that cl.187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. The delegate also found that the secondary applicants Seema and Anish Malik could not be granted a Subclass 187 visa, as they did not meet the secondary visa criterion (cl.187.311) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

8. The applicants lodged an application for review with the Tribunal on 29 October 2019. The Tribunal notes that dependant applicant Anish Malik was not included in the application for review. A copy of the delegate’s decision accompanied the review application. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

   Non-Disclosure Certificate (s376 of the Act) – Invitation to comment

9. At the hearing the Tribunal discussed with the applicant that a non-disclosure certificate has been issued pursuant to s.376 of the Migration Act 1958 (the Act), in relation to certain material which is on the Department’s case file.

10. The delegate for the Minister on 31 March 2023, issued a certificate under s.376 of the Act specifying document(s)/information on the Department file, which they certified must not be given to the review applicant as the information was given to an officer of the Department in confidence.

11. On 12 April 2023, a copy of the certificate (dated 31 March 2023) was provided to the applicant. The applicant was invited to comment about the validity of the certificate in writing before the hearing or orally at the scheduled hearing on 25 May 2023.

12. As disclosed to the applicant during the hearing, the ‘gist of the information’ relates to anonymous allegations that were made to the Department in June 2018 alleging that the applicant was in breach of his visa conditions by driving taxis in Brisbane. The Tribunal did not consider this information to be adverse for the purpose of this review application as the allegations were anonymous, made over five years ago and there is no indication before the Tribunal to show that the Department undertook a subsequent investigation.

13. After careful consideration of the material covered by the s 376 certificate, the Tribunal is of the view that that the information was given to an officer of the Department in confidence by an external source or third party with the expectation that the material would be treated as confidential and would not be disclosed, and that the information is not public or common knowledge. The Tribunal therefore considers that the certificate is valid.

14. The Tribunal is satisfied the applicant was advised of the gist of the information and that any procedural obligations have been discharged. The applicant did not dispute at the hearing, the Tribunal’s findings as to the validity of the certificate.

15. On 25 May 2023, Mr Jasbir Singh appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kelvin Gersbach (the nominator) in the related matter for the nomination application (AAT Case file 1926882).

16. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

17. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

    Nomination of a position

20. 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.

21. 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 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.

22. On the 14 July 2023, the Tribunal affirmed the decision refusing the approval of the nomination made by East Bundaberg Sports Club Ltd in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.187.233(3) and as such cl.187.233 is not met.

23. On 17 July 2023, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient and representative). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by East Bundaberg Sports Club Ltd, which the Tribunal explained was relevant to the applicant meeting cl.187.233(3) which requires the nomination to be approved. As the nomination has been refused, cl.187.233(3) is not met.

24. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 31 July 2023, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act.

25. The review applicants did not provide comments within the prescribed period. However, on  2 August 2023, the representative via email, advised the Tribunal that the applicants requested a decision be made on the pending application with the documents on file.  

26. At the hearing of 25 May 2023, the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in this case, his visa application is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

27. Clause 187.233 as applicable in this case, 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 and that the position must be the one that was the subject of the declaration made as part of the current visa application.

28. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.187.233(3) of Schedule 2 to the Regulations.

29. As the applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

30. There is no evidence before the Tribunal to indicate that the secondary applicant meets the primary requirements for grant of the visa.

    Jurisdiction in relation to the second named applicant

31. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act.  In the case of a decision described in s.338(2) of the Act, an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and s.347(3) of the Act.  The term migration zone is defined in s.5(1) of the Act and generally means the Australian States and Territories.

32. Department records indicate the second named applicant (Mrs Seema), was offshore at the time of the primary decision on 9 October 2019 and at the time the application for review was lodged on 29 October 2019. In the circumstances, the Tribunal finds that Mrs Seema was not in the migration zone at the relevant time. 

33. The Tribunal further notes that the decision record provided to the Tribunal by the applicants, records that in regard to Mrs Seema, ‘there is no right of merits review for this decision’.

34. The application for review made by Mrs Seema, does not meet the requirements of s.347 of the Act and accordingly, the Tribunal does not have jurisdiction in relation to Mrs Seema.

35. 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

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

    ·The Tribunal does not have jurisdiction in this matter in relation to the second named applicant.

    Karen McNamara
    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.