KALDA (Migration)

[2020] AATA 4053

KALDA (Migration) [2020] AATA 4053 (31 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parminder Singh KALDA

CASE NUMBER:  1806290

HOME AFFAIRS REFERENCE(S):          BCC2017/3378803

MEMBER:Michael Cooke

DATE:31 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 31 August 2020 at 2:38pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Travel Agency Manager – applicant failed to attend hearing – no approved nomination – not the subject of an approved nomination–decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 362A, 376
Migration Regulations 1994, rr 1.13, 5.19, 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 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 15 September 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 Direct Entry stream, to work in the nominated position of Travel Agency Manager – ANZSCO 142116.

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

6. The applicant was sent an Invitation pursuant to s.359A on 3 July 2020 as follows:

   INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MR PARMINDER SINGH KALDA

   I am writing in relation to the application for review made by you in respect of a d  ecision to refuse to grant a Regional Employer Nomination (Permanent) visa.

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   ·The Tribunal affirmed the decision to refuse the nomination of Samhaan Pty Ltd (your nominator) on 22 June 2020.

   ·You are not, therefore, the subject of an approved nomination.

   This information is relevant because it is a requirement for grant of a Subclass 187 visa that you meet cl.187.233.

   Relevantly, you cannot meet cl.187.233 if you are not the subject of an approved nomination. If you are not the subject of an approved nomination the Tribunal will be obliged to affirm the decision of the Department to refuse you a Subclass 187 visa.

   You are invited to give comments on or respond to the above information in writing.

   Your comments or response should be received by 17 July 2020. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

   If you cannot provide your written comments or response by 17 July 2020, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 17 July 2020 and you must state the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

7. The applicant had requested a postponement of the hearing previously and it was granted on 29 June 2020.

8. The applicant responded to the s.359A Invitation on 17 July 2020 as follows:

   Dear Sir

   As I informed you earlier that I am currently stuck overseas due to global pandemic and have little or no resources,

   I hereby request you to give me extension till I am come back to Australia so that I can respond back with my comments in proper order

   I would highly appreciate your kind consideration

   Thanks and regards

   Parminder singh kald

9. The applicant had already been granted a postponement of the hearing and subsequently did not address the substantive issue of a lack of an approved nominator. Therefore, the Tribunal has decided to refuse a further postponement of the hearing.

10. The applicant was invited to appeared before the Tribunal on 30 June 2020 to give evidence and present arguments by telephone. The Tribunal was unable to contact the applicant in India on both available telephone numbers.

11. As the applicant has not attended a scheduled hearing the Tribunal will now finalize the review pursuant to s.362B of the Act. The applicant was invited under section 360 to appear before the Tribunal but did not appear before the Tribunal on the day on which, or at the time and place at which, the applicant was scheduled to appear. The Tribunal by written statement under section 368 will now make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

12. The applicant contacted the Tribunal post hearing and stated the following:

    Dear Sir

    I had scheduled hearing today

    Unfortunately I missed the call from Aat

    Can you please advise what option I am left with

    Thanks and kind regards

    Parminder singh kalda

13. A s.376 Certificate has appeared on the Tribunal file. However, The Tribunal has identified nothing in the s.376 Certificate which is relevant to the decision under review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant is the subject of 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 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 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. On 22 June 2020 the Tribunal affirmed the decision of the delegate to refuse the nomination of SAMHAAN PTY LTD (AAT 1802815).

19. The applicant was informed of this outcome in an Invitation pursuant to s.359A of the Act.

20. Therefore, as the Tribunal finds that the applicant is not the subject of an approved nomination - cl.187.233 is not met.

21. 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

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

    Michael Cooke
    Senior 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.