Manjit Singh (Migration)

[2021] AATA 125

Manjit Singh (Migration) [2021] AATA 125 (11 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Manjit Singh
Mrs Manju

CASE NUMBER:  1801557

HOME AFFAIRS REFERENCE(S):          BCC2017/2264958

MEMBER:Mr S Norman

DATE:11 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 11 January 2021 at 10:12am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Customer Service Manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.223

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 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 27 June 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). 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.

3. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager (ANZSCO: 149212).

4. On 3 January 2018, the delegate refused to grant the visas because the applicant did not meet cl.187.223(2) of Schedule 2 to the Regulations.

5. The first named applicant appeared before the Tribunal on 8 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the representative (both past and present) of the applicant’s nominating employer.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

8. An application for Regional Employer Nomination (Class RN) visa was lodged by Mr. MANJIT SINGH on 27/06/2017 in relation to an appointment of ‘Customer Service Manager (ANZSCO 149212)’. Mr Singh, claimed to satisfy the criteria for subclass 187 visa under the ‘Temporary Residence Transition (TRT) Stream’.

9. On 17/11/2017 the nomination lodged by SA INDUSTRIAL SERVICES NSW PTY LTD ATF ELREP SERVICES TRUST being the nomination referred to in paragraph 187.223(1), was refused by a delegate of the Minister. On the same day, a ‘natural justice letter’ was sent to the applicant through his authorised recipient, requesting they comment in writing within a prescribed period. At the time and date of the delegate’s decision, no comment had been received. The delegate then found the applicant did not meet cl.187.223(2); or cl.187.223.

10. The delegate also found that based on the evidence before them, the applicant did not meet the criteria for the Direct Entry stream, or the Agreement stream. The delegate also considered cl.187.311 (member of the family unit). However, as no person met the primary criteria for the grant of the Visa, no person was entitled to the Visa based on their membership of the family unit of a person who had.

11. The delegate then refused to grant the applicants a Regional Sponsored Migration Scheme (Subclass 187) Visa.

12. By s.359A letter dated 17 December 2020 (emailed to the authorised recipient), the Tribunal advised the applicant that by decision of 16 December 2020, the Tribunal affirmed the Department's decision not to approve the nomination in relation to them made by their nominating employer, SA Industrial Services NSW Pty Ltd ATF ELREP Services Trust (now titled ‘Noorco Pty Ltd’). Further, that this was relevant as cl.187.223(2) required that the nomination made in relation to them by their nominating employer had been approved; and if the Tribunal relied on this information, it may find the nomination in relation to them had not been approved and consequently the decision under review would be affirmed. The applicant was then invited to give comments on or respond to the above information in writing by 31 December 2020. By subsequent email, the applicant advised that no further information would be lodged.

13. Based on the evidence before it, the Tribunal finds the applicant has not satisfied cl.187.223(2); or cl.187.223. 

14. The Tribunal also considered cl.187.311 (membership of the family unit). However, as no applicant met the primary criteria for the grant of a visa, none were entitled to a visa based on their membership of the family unit of a person who had.

15. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

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

    Mr S Norman
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)    The nomination has not subsequently been withdrawn.

    (3A)   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.

    (4)    The position to which the application relates is located in regional Australia.

    (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.