Jaspinder Singh (Migration)

[2019] AATA 3189

Jaspinder Singh (Migration) [2019] AATA 3189 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaspinder Singh

CASE NUMBER:  1815519

DIBP REFERENCE(S):  BCC2017/369726

MEMBER:Ian Berry

DATE:23 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 23 July 2019 at 11:39am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – failure to attend scheduled hearing – subject of an approved nomination – nomination application withdrawn – seeking a new nominator – decision under review affirmed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 Immigration on 11 May 2018 to refuse to grant the visa applicant a Regional Employer Nomination (Permanent) Subclass 187 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 27 January 2017. The delegate refused to grant the visa on the basis that applicant nominator ‘the Trustee for Australian Investments’ withdrew its nomination nominating the applicant.

3. On 20 June 2019, the Tribunal wrote to the applicant under s.359A requesting information or comments concerning his not having an approved nomination. The applicant , by his email of 3 July 2019 responded stating:

   It is accepted that it is a requirement for the grant of a Regional Nomination (Permanent) (Class RN) visa that the nomination for the position identified in the associated visa application has been approved. The invitation further stated that “if are not the subject of an approved nomination at the time of the Tribunal’s decision, the Tribunal may find you do not meet cl.187.233(3). If the Tribunal finds you do not meet any of the remaining subclauses in clause 187.233, the Tribunal must affirm the decision to refuse to grant you a Regional Employer Nomination visa.

   It appears that the Tribunal is basing its decision to affirm the decision to refuse to grant me a Regional Nomination (Permanent) (Class RN) visa on what was decided in Singh v Protection [2017] FCAFC 105 (“Singh”). I wish to state that decision in Singh should not be followed as it appears that the Singh was decided Based on the r.5.19 of the Migration Regulations 1994 (Regulation 5.19) as it then stood on 7 June 2013 when the nomination application was made.

   It appears that there have been substantive changes in r.5.19 since the application of nominator in Singh was made.

   Although the application for the approval of the nominated position for Subclass 187 Regional Sponsored Migration Scheme visa under Direct Entry Stream to nominate me was refused by a delegate of the Minister for Home Affairs and the review of the refusal of the application for the approval of the nominated position for Subclass 187 Regional Sponsored Migration Scheme under Direct Entry Stream was not sought by the nominating employer, it appears that the current and relevant legislation scheme allows that the new nomination application can be lodged against the visa application that has not been finally determined. Therefore, it appears that upon the approval of the associated new nomination application, the subclause cl.187.233(3)to the schedule to the Migration Regulations 1994 (“the Regulations”) will be met.

4. In view of the response and comments made by the applicant, the Tribunal decided to invite the applicant to a hearing allowing him to advance his argument. The reason for this; it appears the nomination application by his nominator the Trustee for Australian Investments was not refused by the delegate but was withdrawn by that nominator’ and cited a case determined by the Full Court of the Federal Court, referred by him in the excerpt above.

5. On 4 July 2019, the Tribunal wrote to the applicant advising of the hearing date for 22 July 2019 at 11 AM (Queensland time). The time set aside for the hearing was one hour.

6. On 11 July 2019, the applicant wrote to the Tribunal by email attaching his response to the invitation to attend a hearing. The applicant advised that he will take part in the hearing by answering ‘yes’ to the question ‘Will you take part in the hearing scheduled for 22 July 2019?’ The applicant stated he did not need the services of an interpreter. He did not intend to call witnesses.

7. On 22 July 2019, the applicant did not attend the hearing at the appointed time and at the appointed hour. The Tribunal waited for a reasonable time in the hope he may attend but delayed because of traffic or another reason.

8. The Tribunal takes into account the argument and reasons put forward in his email as supporting the contention that the applicant is able to seek another nominator and use this visa application to somehow attach to the new nomination.

9. The Tribunal made endeavours to search the applicant’s information to ascertain as to whether he did have another nominator, and appears he did not.

10. The Tribunal also searched departmental records relating to the nominator’s application to ascertain whether the nominators position had changed. Originally, the applicant nominator had actually withdrawn its application where the applicant was identified as the nominee.

11. If the applicant had, or was in the process of finding a new nominator, it would not assist him. His future nominator is still required to make a nomination application identifying the applicant. He cannot simply rely on his current visa application. His current visa application is linked to his nominator ‘the Trustee for Australian Investments’.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant has an approved nomination or a nomination upon which there is a pending decision and otherwise satisfies r187.233.

14. On 27 March 2018, the nominator (the Trustee for Australian Investments) withdrew its application by it prior to the delegate making a decision.

15. The departmental file establishes that on 27 March 2018, the applicant was issued with a natural justice letter inviting him to comment on that fact within 28 days. The applicant did not make any comment to that natural justice letter.

16. The tribunal is satisfied the applicant does not have a nominator which would ordinarily satisfy r.187.233 and therefore it must affirm the delegate’s decision.

    DECISION

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

    Ian Berry
    Member