Mandeep Singh (Migration)

[2020] AATA 3349

Mandeep Singh (Migration) [2020] AATA 3349 (26 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mandeep Singh Mandeep Singh

CASE NUMBER:  1928056

HOME AFFAIRS REFERENCE:               BCC2017/3842670

MEMBER:Lilly Mojsin

DATE:26 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 26 June 2020 at 9.20 am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) – subject of an approved nomination – nomination application withdrawn – decision under review affirmed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 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 19 October 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 review, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager (General) (ANZSCO 142111).

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 nomination made by T & A Pty Ltd [ABN 36 151 599 165] had been refused.

6. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this review and the individual circumstances of the applicant.

7. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

8. The applicant consented to the hearing being conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. The applicant appeared before the Tribunal on 25 June 2020 to give evidence and present arguments. The applicant was assisted by an interpreter in the Hindi language.

10. The applicant provided, with his hearing response, the phone numbers of Rachel and Avtar, and indicated that they worked with him and they would be able to inform the Tribunal that the position was genuine and that the applicant had the experience for the position.

11. The applicant enclosed a copy of the approval of the Regional Certifying Authority, an employment agreement, details about the need for the position and organisational chart.

12. The Tribunal advised the applicant that it was satisfied that he was a good worker and the position was genuine. The Tribunal explained to the applicant that whilst his co-workers were able to provide evidence regarding his work and the type of job he was employed in, this information was not relevant to the issue before the Tribunal ie. is he the subject of an approved nomination.

13. The Tribunal put to the applicant, pursuant to s.359AA, information that was the reason or part of the reason for affirming the decision under review. The Tribunal explained that the applicant could seek an adjournment to respond or respond in writing or respond immediately. The Tribunal put to the applicant that the nomination made by T & A Pty Ltd[1] had been withdrawn on 17 April 2020 and the applicant also no longer worked for the nominee. The Tribunal indicated to the applicant that this information was relevant because without an approved nomination he was ineligible to meet cl.187.233 and satisfy the primary criteria for the grant of the visa.

    [1] AAT 1925123

14. The applicant responded and stated that in December 2019/January 2020 he went overseas and on his return, he was told he has taken too much leave and also that he would have to take more leave. Further the owner of the business told him he had to resign. The applicant was not aware that the owner had withdrawn. He said he officially never stopped working as he was asked to take more leave. He contacted the owner to ask when he should return but the owner is overseas. He handed in his resignation by email and as due to Covid19, but it was a temporary resignation. He is appealing his resignation. He is a genuine case, he is not aware of the withdrawal.  

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. Clause 187.233 as applicable in this review 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.

16. 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.

17. The Tribunal notes that the applicant has stated that he is appealing his resignation and he was told by his employer to resign. These are not matters that the Tribunal is able to take into consideration. The employer withdrew the nomination. The applicant has acknowledged that the nomination has been withdrawn. The Tribunal finds the applicant does not satisfy cl.187.233.

18. Therefore, cl.187.233 is not met.

19. 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

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

    Lilly Mojsin
    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.