PAVITTERJIT SINGH (Migration)

[2018] AATA 5549

PAVITTERJIT SINGH (Migration) [2018] AATA 5549 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Pavitterjit Singh
Mrs Prabhjot Kaur
Miss Gazleen Kaur

CASE NUMBER:  1712159

HOME AFFAIRS REFERENCE(S):           BCC2016/3214021

MEMBER:Jennifer Cripps Watts

DATE:10 October 2018

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 10 October 2018 at 12:32pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – nomination refused – tribunal attempted to contact applicant – no response– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 5.19, Schedule 2, cls 187.233, 187.311

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 Immigration and Border Protection 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 28 September 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 Direct Entry stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111), nominated by Café 33 Cairns Pty Ltd.

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 delegate of the Minister was not satisfied that the applicant was the subject of an approved nomination.

6. On 5 September 2018, the applicant was sent an invitation to attend a scheduled hearing at 10:30am on 25 September 2018.

7. He did not respond to the hearing invitation indicating whether or not he, or the dependant applicants, would attend the hearing.  On 14 September 2018, the Tribunal received notification of a change representative/authorised recipient, in writing.  The form was signed and dated by the applicant and indicated that he was to be the authorised recipient in respect of all future communications relating to his review matter.  His details were changed in the Tribunal system to reflect this and all notifications have been sent to him directly at his nominated email address. 

8. The applicant did not attend his hearing and gave no reason for the non-attendance.  The nominating business also did not attend the combined hearing or give a reason for their non-attendance.  The Tribunal made a decision in the related nomination matter for Café Cairns 33 Pty Ltd (Tribunal file number 1710106) affirming the Department’s decision to refuse the nomination under review.  A s.359AA letter was sent to the applicant, after the nominating business had been notified of the decision to refuse the nomination relating to him, inviting the applicant to comment or respond to it appearing that he was not the subject of an approved nomination.  The Tribunal received no comments or response.

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 is the subject of an approved nomination relating to his Subclass 187 visa application.

    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.

12. The nominating employer is Café 33 Cairns Pty Ltd.  On 25 September 2018, the Tribunal affirmed the decision to refuse their nomination of the applicant in this matter for the position of Café or Restaurant Manager.

13. The applicant was subsequently notified, by way of a s.359A letter, sent to him on 25 September 2018, that because the related nomination decision had been affirmed it did not appear that the applicant met the criteria for the grant for the visa.  He was informed this would be a reason for affirming the decision to refuse his visa and he was invited to comment on or respond to the information in writing by 9 October 2018.  He was informed in the letter that he could ask for an extension of time, no later than 9 October 2018, to comment or respond.

14. The applicant did not request an extension of time, nor did he respond to the s.359A letter by 9 October. 

15. The Tribunal is satisfied that it has taken all reasonable steps to provide the applicant with the opportunity to attend a hearing to give oral evidence and also to comment on or respond to the adverse information regarding the nomination.

16. On the evidence, the Tribunal finds that the applicant is not the subject of an approved nomination.

17. Therefore, cl.187.233 is not met.

    Dependent applicants

18. The dependent applicants must satisfy cl.187.311, which states, relevantly, that the (dependent) applicant:

    (a)   Is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b)   Made a combined application with the primary applicant.

19. The dependent applicants made a combined application with the primary applicant.  However, as the (primary) applicant does not hold a Subclass 187 visa, the dependent applicants in this review do not meet the criteria for the grant of the visa because there is no evidence before the Tribunal that they are members of the family unit of a person who holds a 187 visa.

20. 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

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

    Jennifer Cripps Watts
    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

    (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.