Matad (Migration)

[2020] AATA 1194

Matad (Migration) [2020] AATA 1194 (14 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kulvinder Singh Matad
Mrs Ramandeep Kaur

CASE NUMBER:  1813369

HOME AFFAIRS REFERENCE(S):          BCC2016/2512496

MEMBER:Karen Synon

DATE:14 April 2020

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction in relation to the second named applicant.

Statement made on 14 April 2020 at 8:10am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – review application withdrawn­ – requested extension of time to find a new nomination – extension declined – ­­­­­­decision under review affirmed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 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 29 July 2016.  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 the Direct Entry stream, to work in the nominated position of ’Cook’.

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 lodged by ‘FRIENDS OF THE COMPANY’ was refused on16 March 2018.

6. The applicants applied for review of the primary decision on 9 May 2018 and provided a copy of the primary decision.

7. The applicants were represented in relation to the review by their registered migration agent until 27 March 2020.

8. The applicant appeared before the Tribunal on 7 April 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. 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 straight forward 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is cl.187.223.

    Nomination of a position

12. 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.

13. 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.

14. On 16 March 2020 the Tribunal wrote to the applicants in accordance with s.359A of the Migration Act and invited comments or response to the following information in writing by 30 March 2020:

    The application for approval of the nominated position made by Friends of the Company Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration.  The nominator sought a review of that decision but on 18 December 2019 that application for review was withdrawn.  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: cl.187.223.

    If we rely on this information is 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 cl.187.223, which is a requirement for the grant of the visa we must affirm the decision that is under review.

15. In response on 30 March 2020 the applicant relevantly wrote:

    The application for approval of the nominated position made by Friends of Company Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration.  The nominator sought a review of that decision but this application was withdrawn on 18 December 2019.  This means that the nominator’s application for the nominated position has not been approved.  I accept that I dont have an approved sponsor but I would request the presiding member to give me an extension to find another employer to get a new approved nomination to justify my claims for the grant of a 187 visa.  I hope the member can give me an extension regarding this matter.

16. In response on the same day, 30 March 2020, the Tribunal relevantly advised:

    We have considered the request carefully but have decided not to grant an extension of time to find another employer because no other nomination can satisfy the requirement in the current matter.  The hearing will proceed as scheduled by telephone on 7 April 2020.

17. During the hearing the Tribunal explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to the applicant.  As recorded in the primary decision, a copy of which was provided to the Tribunal, this position nomination is no longer available to him as the nomination lodged by ‘FRIENDS OF THE COMPANY’ was refused by the Department and, as detailed in the Tribunal’s 359A letter of 16 March 2020, the review lodged by ‘FRIENDS OF THE COMPANY’ was withdrawn.

18. Invited to make any submissions the applicant said he just wants more time to find another nomination and gather some documents.  The Tribunal repeated that it was declining to provide this because no other nomination can satisfy the requirement in the current matter.  The applicant said this was clear.  In relation to whether he is eligible to apply for another visa he needs to speak with the Department.  The Tribunal noted that he conceded in his response to the Tribunal’s 359A letter that he does not have an approved sponsor.  The applicant agreed and said he does not think he can apply for another visa onshore.

19. On the basis of the information before it, including the applicant’s own evidence, the Tribunal finds that the applicant is not the subject of an approved nomination.

20. Therefore, cl.187.233 is not met.

21. 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.

    Jurisdiction of the Second Named Applicant

22. During the hearing the Tribunal explained that it has no jurisdiction to review the decision in respect of the second named applicant because she was not in Australia’s migration zone when the visa application was made on 29 July 2016 or when the application for review was lodged on 9 May 2018.  After explaining this, the Tribunal invited the applicant’s comments or submissions.  He asked who can make a decision for her.  The Tribunal said it could not because it has no jurisdiction however this should make no material difference to the outcome.

    DECISIONS

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

24. The Tribunal has no jurisdiction in relation to the second named applicant.

    Karen Synon
    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.