Kunwar Jaskaran Singh (Migration)

[2020] AATA 1233

Kunwar Jaskaran Singh (Migration) [2020] AATA 1233 (16 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Kunwar Jaskaran Singh

CASE NUMBER:  1911134

HOME AFFAIRS REFERENCE(S):          BCC2017/2296001

MEMBER:Phoebe Dunn

DATE:16 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 April 2020 at 1:22pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Motor Mechanic – subject of an approved nomination – no response to s 359A invitation – not entitled to appear before the Tribunal – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 28 June 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 Motor Mechanic (ANZSCO 321211).

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 related nomination application by Jacob Raymond Crawford (the nominator), being the nomination referred to in cl.187.233(1), was withdrawn by the nominator on 1 March 2019 and as such there was no approved nomination.

6. The applicant was invited to a hearing on 5 March 2020.  By email received on 4 March 2020, the applicant requested the hearing be postponed on the grounds of a medical condition.  In support of that request the applicant provided copies of two medical certificates stating that the applicant was not fit for work for the period from 12 February to 14 February 2020 and from 4 March to 9 March 2020.  The Tribunal accepted the request and the hearing was rescheduled to 25 March 2020.  By email dated 24 March 2020 the Tribunal received a further request for postponement of the hearing on the basis of an ongoing medical condition.  The applicant provided a copy of a medical certificate stating that the applicant was unfit for work from 24 March 2020 to 31 March 2020, together with a certificate issued by the Seaford Physiotherapy Clinic stating that he had attended the clinic on 17 March 2020. By letter dated 25 March 2020, the Tribunal accepted the further request to postpone the hearing to a date to be determined.

7. In its letter dated 25 March 2020, the Tribunal wrote to the applicant in accordance with the requirements of s.359A of the Act, inviting the applicant to comment on or respond to certain information that the Tribunal considered would, subject to any comments or response from the applicant, be the reason, or part of the reason, for affirming the decision under review, or to seek additional time to comment on or respond to the information.  That information related to the nominator withdrawing its application for review of the decision to refuse the related nomination, which the Tribunal explained was relevant to the requirement in cl.187.223(3) which requires the related nomination to have been approved. The Tribunal provided particulars of the information as follows:

   a.On 28 June 2017, CRAWFORD, JACOB RAYMOND (the nominator) lodged a nomination application under the Direct Entry stream, nominating the applicant in the nominated position of Motor Mechanic (General) (ANZSCO 321211) (the nomination), being the nomination in respect of which the applicant’s Subclass 187 visa application declaration was made;

   b.On 1 March 2019, the nominator withdrew the above nomination; and

   c.This means that the nomination has not been approved as required under cl.187.233(3) of Schedule 2 to the Regulations.

8. The Tribunal explained that this information is relevant to the review because it is a requirement for the grant of the applicant’s Subclass 187 visa that the position identified in his Subclass 187 visa application is the subject of an approved nomination.  The Tribunal explained the consequences of the Tribunal relying on this information in making its decision is that the Tribunal may find that the position specified in the applicant’s 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 visa and that the Tribunal must affirm the decision that is under review.

9. The applicant was invited to comment on or respond to the information in writing, or to request an extension of time to comment on or respond to the information, by 8 April 2020. In its letter the Tribunal explained that if the Tribunal did not receive any comments or response, or a request for an extension of time within which to comment or respond, by the prescribed date, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information, and that the applicant would lose any entitlement the applicant may otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. The Tribunal did not receive a response from the applicant, or a request for an extension of time in which to comment or respond, by the prescribed date. As at the date of this decision the Tribunal has received no response to its letter.

11. The Courts have confirmed that where an applicant fails to provide the requested comments or information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.[1]  Accordingly, as the applicant failed to comment on or respond to the information within the prescribed period, he has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

    [1] Singh v Minister for Immigration and Border Protection [2014] FCCA 1403, 32-39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40

12. The Tribunal has considered whether it should exercise its discretion under s.359C(1) to take further steps to obtain a comment or response from the applicant. The Tribunal has also considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to comment or respond.

13. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] 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[4] regarding the application of the common law principles of reasonableness when exercising its discretion and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[6] where analogous issues were discussed.

    [2] [2002] FCA 617

    [3] [2012] FMCA 28

    [4] [2013] HCA 18 (8 May 2013)

    [5] [2014] FCAFC 1 (4 February 2014)

    [6] [2014] FCA 915 (28 August 2014)

14. The Tribunal considered whether, in the circumstances of this case, information demonstrating the applicant meets the requirements in cl.187.233(3) of the Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information already and the significance of the information to the applicant.

15. The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware since around 24 April 2019 of the reasons for the refusal of his visa application, being that the related nomination was withdrawn by the nominator and as such there was no approved nomination as required by cl.187.233(3) of Schedule 2 to the Regulations.

16. The Tribunal considers that the applicant has had a fair opportunity to provide the relevant information to demonstrate that he meets the requirements of cl.187.233(3) of Schedule 2 to the Regulations and that this information has not been forthcoming. The Tribunal also notes that the related nomination was withdrawn and there is no pending review application in relation to that nomination before this Tribunal. In these circumstances, the Tribunal has decided to make a decision on the review without taking further action to obtain the applicant’s views on the information in accordance with s.359C(2) of the Act and has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further.

17. The applicant was represented in relation to the review by his registered migration agent, Mr Sanjib Karmacharya.

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 there is an approved nomination as required by cl.187.233(3).

    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 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 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 of the Regulations); 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. The Tribunal has considered the evidence before it and notes that for the applicant to meet cl.187.233(3), the nomination for the position to which the application relates must have been approved.  In this case, the nomination of the position by the nominator was withdrawn on 1 March 2019.  This means there is no approved nomination.  As there is no approved nomination, the applicant does not meet the requirement in cl.187.233(3), and therefore does not meet cl.187.233 in its entirety.

23. Therefore, cl.187.233 is not met.

24. 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

25. 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

    (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.