Maan (Migration)

[2023] AATA 3799

Maan (Migration) [2023] AATA 3799 (8 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Charanjeet Kaur Maan
Mr Simranjeet Singh Toor
Mr Akaljot Singh
Ms Harleen Kaur

CASE NUMBER:  1926347

HOME AFFAIRS REFERENCE(S):          BCC2019/3090760

MEMBER:Ian Berry

DATE:8 November 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 08 November 2023 at 3:28pm

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – ICT Accounts Manager – applicant did not provide any comments or response – nomination application associated with the position was not approved – nomination remains refused – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363

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 (the Minister) 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 18 June 2019. 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 ICT Accounts Manager ANZSCO 225211.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because there is no approved nomination in place.

   s. 359A letter decision clause no response

6. On 5 October 2023, the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to provide a response or comments (in writing) concerning on 5 December 2022, the Tribunal affirming the decision not to grant an Employer Nomination lodged by employer/nominator Mr Gurpreet Singh. That information was relevant to the review because without a nomination, the applicant’s visa application may be refused.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 19 October 2023, the Tribunal may decide on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant has an approved nomination.

    Does the applicant have an approved nomination of a position?

11. 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.

12. 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.

13. There is no evidence before the Tribunal of the applicant having an approved nomination. The evidence before the Tribunal was that to the applicant was a nominee in the employee of Mr Gurpreet Singh as ICT accounts manager. On 5 December 2022 the Tribunal decided to refuse the applicants employer’s nomination big cars there is no evidence before it that it had provided a certificate from the RCB of the position being approved and no evidence of the position being genuine.

14. With that evidence before this Tribunal, and without any comment or response from the applicant’s, it must affirm the decision to refuse the visa.

15. In respect of the other applicants, not including the primary applicant, (the secondary applicants) the Tribunal notes there is no information before it to suggest that secondary applicants meet the primary criteria for the grant of the visa. The secondary applicants applied for the visa because they were members of the family unit of the applicant.  As the Tribunal has found that the applicant does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of the secondary applicants, as they were members of the family unit of a person who did not satisfy the primary criteria for the visa.

16. Therefore, cl 187.233 is not met.

17. 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

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

    Ian Berry
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.