Mann (Migration)

[2020] AATA 3147

Mann (Migration) [2020] AATA 3147 (28 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jaswant Singh Mann
Mrs Ashishpal Kaur

CASE NUMBER:  1820078

HOME AFFAIRS REFERENCE(S):          BCC2017/2029776

MEMBER:Peter Emmerton

DATE:28 July 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 28 July 2020 at 11:25am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – temporary residence transition stream – related nomination application refused – refusal affirmed on review – no response to tribunal’s s 359A invitation to comment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 187.223(4)(h)(ii)

CASE

Hasran v MIAC [2010] FCAFC 40

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).

2. The applicants applied for the visas on 8 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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager ANZSCO 141111.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations because the nomination was not approved.

6. The applicant appeared before the Tribunal, via telephone on 8 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Robert Pullens, the Director of the nominating entity, Grills of Caribbean Unit Trust. This was combined with the hearing for MRT file ref 1816232, the nominator.

7. The Tribunal exercised its discretion to hold the hearing by telephone. 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 matter and the individual circumstances of the applicant. 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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the nomination has been approved.

10. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

11. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

12. On 6 June 2017, the applicant’s sponsoring employer, Grills of Caribbean Unit Trust applied for approval for a nomination for the position of Café or Restaurant Manager, ANZSCO 141111. Mr Jaswant Singh Mann is the nominee for the position. On 18 May 2018 the Department refused the application. In a separate decision, the Department refused Mr Jaswant Singh Mann’s subclass 187 visa application because Grills of Caribbean Unit Trust’s nomination was not approved.

13. Grills of Caribbean Unit Trust and Mr Jaswant Singh Mann applied to the Tribunal to review the Department’s decisions.

14. On 8 July 2020, the Tribunal affirmed the decision under review to refuse Grills of Caribbean Unit Trust’s nomination for the position of Café or Restaurant Manager, (ANZSCO 141111).[1]

    [1] 1816232

15. The Tribunal notes the 4 Statutory Declarations received on 10 July 2020 after the hearing which took place on 8 July 2020. The contents of the Statutory Declarations, 1 each from Mr Parsheep Singh, Mr Davinder Singh, Mr Rajdeep Singh and Mr Jaswat Singh Mann referred in general terms to the ease with which unauthorised taxi drivers could log onto the system without the owner of the PIN code being aware, once they had obtained the PIN code without the permission of the legitimate owner of that identification security device. Some references were also made to the frequency of such actions within the industry That is not the issue under consideration as the relevant issue is whether the nomination has been approved.

16. On 13 July 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised the following.

    ‘Dear Mr Mann and Mrs Ashishpal Kaur

    INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MR JASWANT SINGH MANN AND MRS ASHISHPAL KAUR

    I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant a Regional Employer Nomination (Permanent) visas.

    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 decisions under review.

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

    • The application for approval of the nominated position made by Grills of Caribbean

    Unit Trust was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but it was recently affirmed by the AAT.
    This means that the nominator’s application for the nominated position has not been approved.

    This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.

    If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.

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

    Your comments or response should be received by 27 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 27 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 27 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.’

17. At the time of making this decision the applicant has not responded to the letter.

18. The review applicant did not provide the information within the prescribed period and no extension of time was requested. 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 a decision without taking further steps to obtain the information.

    Nomination of a position

19. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

20. 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.

21. There is no evidence before the Tribunal that an approved nomination associated with this Regional Employer Nomination (Permanent) (Class RN) visa application has been granted.

22. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 187.233(3).

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’s Regional Employer Nomination (Permanent) (Class RN) visa.

    Peter Emmerton
    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.