Jatinder Singh (Migration)

[2023] AATA 252

Jatinder Singh (Migration) [2023] AATA 252 (17 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Jatinder Singh
Mrs Kuldeep Kaur

CASE NUMBER:  1912414

HOME AFFAIRS REFERENCE(S):          BCC2017/2690016

MEMBER:Amanda Mendes Da Costa

DATE:17 January 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 17 January 2023 at 9.07am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – cook – subject of approved position nomination – related nomination application refused and application for review withdrawn – intention to apply for new nomination – no appearance at hearing – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 363(1)(b), 379A(5)
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Huo v MIMA [2002] FCA 617
Kaur v MIBP [2014] FCA 915

Manna v MIAC [2014] FMCA 28
MIAC v Li [2013] HCA 18
MIBP v Singh [2014] FCAFC 1

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 28 July 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook (ANZSCO Code 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the position in the applicant’s visa application was not the subject of an approved nomination.

6. On 11 October 2022 the Tribunal wrote to the applicants pursuant to s 359A of the Act inviting him to comment on or respond to information which it considered would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review.

7. The particulars of that information were:

   ·The application for approval of the nominated position by THE TRUSTEE FOR BRITANNIA HOTELS HOSPITALITY AND CATERING TRADING TRUST (the nominator) was refused by a delegate of the Minister.

   ·The nominator sought a review of that decision, but it has now withdrawn that application. 

   ·This meant that he nominator’s application had not been approved.

8. The Tribunal explained that the above information was relevant to the review because it was a requirement for the grant of the visa that the position in the applicant’s visa application was the subject of an approved nomination.

9. The Tribunal further explained that if it relied on this information in making its decision, it may find that the position specified in the visa application was not the subject of an approved nomination and would mean that the applicant did not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review.

10. The applicants were requested to provide any comments or response (in writing) by 25 October 2022.  On that date, the applicants provided a written response in which they explained that in light of the latest case law, they understood the applicant could be granted the visa if he had a new nomination which could be attached to the visa.  They further explained that he intended to apply for a further nomination.

11. The Tribunal notes that the applicants were invited by the Tribunal to appear before it on 28 October 2022 and 6 December 2022 to give evidence and present arguments. At the request of the applicants, the Tribunal postponed the first hearing.  The applicant did not before the Tribunal on 6 December 2022 and did not seek an adjournment of the hearing.  Having reviewed the file, the Tribunal is satisfied that the applicants were properly invited to the hearing in accordance with s 379A(5) of the Act.

12. Although the applicants have not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow them additional time in which to provide evidence to support the application for review.

13. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

14. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to provide the comments or response addressing the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further.     

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant meets the requirements of cl 187.233 of Schedule 2 to the Regulations.

    Nomination of a position

17. 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.

18. 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.

19. Based on the evidence before it, the Tribunal finds that the application for approval of the nominated position by the nominator was refused by a delegate of the Minister.  The nominator sought a review of that decision with the Tribunal but subsequently withdrew it.

20. The Tribunal further notes that there is no evidence that the applicant is the subject of an approved nomination by another nominator.

21. Accordingly, the Tribunal is not satisfied that the position in the applicant’s visa application is the subject of an approved nomination and cl 187.233 is not met.

22. 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.

23. Given the above findings, the Tribunal is not satisfied that the second named applicant has met the secondary criteria for the grant of a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa.

    DECISION

24. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Amanda Mendes Da Costa
    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.