Pawan Kumar Singh (Migration)

[2021] AATA 1464

Pawan Kumar Singh (Migration) [2021] AATA 1464 (29 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pawan Kumar Singh
Mrs Radhika
Master Harsimar Singh

CASE NUMBER:  1814800

HOME AFFAIRS REFERENCE(S):          BCC2017/1157204

MEMBER:Wan Shum

DATE:29 April 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 29 April 2021 at 10:38am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Restaurant Manager –no approved nomination – time of decision– not the subject of an approved nomination–decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, 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) Subclass 187 (Regional Sponsored Migration Scheme) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the Subclass 187 visas on 25 March 2017.

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Café or Restaurant Manager.

5. The related nomination was made by Albury Spice Cafe Pty Ltd (the nominator) on 27 April 2016.

6. The nomination was refused on 29 March 2018.

7. As a consequence, the delegate refused to grant the visa finding that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

8. Both the nominator and the applicant sought review of those decisions.

9. However, on 9 October 2020, the Tribunal (differently constituted) affirmed the decision of the delegate not to approve the nomination.

10. For the following reasons, the Tribunal has concluded that this matter should also be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

12. This requirement is set out in clause 187.233 which appears 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.

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 the visa application, the applicant provided details of a related nomination, which is the nomination made by the nominator for the position of Restaurant Manager. Under the section ENS/RSMS declarations, the applicant responded ‘Yes’ to the sentence “[h]ave declared that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection”.

15. As set out above, the Tribunal (differently constituted) affirmed the delegate’s decision not to approve the nomination.

16. The Tribunal invited the applicant to a hearing scheduled on 17 March 2021. The Tribunal then wrote to the applicant on 26 February 2021 inviting him to comment on or respond to the information that a decision had been made not to approve the nomination made by Albury Spice Cafe Pty. Ltd. A response was due by 12 March 2021.

17. On 10 March 2021, the Tribunal received a request to “please hold final decision until my 489 State Nomination finalsised [sic]” as he had lodged a “489 Statement Nomination Application and waiting for State Nomination decision”.

18. On 14 March 2021, the Tribunal received an email from the applicant outlining his circumstances and what had occurred with his previous employers. As the earlier email did not address the information that the nomination had not been approved, and the later email was received after the due date of 12 March 2021, the Tribunal did not consider that it had received a response to its invitation within the prescribed period and cancelled the hearing scheduled for 17 March 2021. The applicant’s response was that he had sent an email on 10 March 2021 and another one on 15 March 2021.

19. While not clear based on the response of 10 March 2021 that the applicant was addressing the adverse information, the Tribunal notes that the applicant believed he was providing a response within the timeframe allowed. Given this, the Tribunal invited the applicants to another hearing scheduled on 7 April 2021.

20. This includes the applicant’s email of 14 March in which he described his previous employment and visa history. In summary, this was that he came to Australia in 2008 to study and then in 2012 to 2013, he was sponsored by Indian Gallery Restaurant owner Karamjit Singh as a Restaurant Manager and he was granted a Subclass 457 visa. Suddenly the owner closed the Restaurant within 1 year but he did not know why. After that he found a new job that would fulfill all the requirements of the visa in Albury NSW with the nominator, trading as Sizzling Tandoori restaurant. He then applied to Immigration to change the sponsor. He worked hard there and the owner agreed to sponsor him for a Subclass 187 visa and he applied for the visa in 2016. The Regional Certifying Body gave its approval after interviewing him. The Department did not consider the nomination until nearly 2 years had passed and in this period, the chef had their nomination visa approved. But then his visa was refused in 2018. The applicant felt that it was unfair as the Immigration department did not give him an opportunity to explain the situation regarding his visa. Around this time, the Gagandeep, the Restaurant Chef and new director of the business, started living in Melbourne and hardly came to the restaurant. The applicant disagreed with the Immigration officer’s decision that the Restaurant had no need for Manager stating that he was the only one who looked after the place and he worked very hard there for 4 years. He claims that he fulfilled all the 187 visa class conditions. The applicant said that after that he got depressed and his relations with the owner was “not good” and so he searched again for a new job. After discussing this whole matter with his migration agent lawyer at the time, he was advised to move to the Northern Territory. They moved in 2018 and the applicant found a job with the Indian Curry Paradise restaurant as a Manager. He fulfilled all the requirements for nomination by the NT Government and applied for a Subclass 489 visa. The applicant confirmed at the hearing that they had now been waiting more than 17 months for an outcome. The applicant explained that despite COVID-19 he was still working in Curry on Naan Indian restaurant during these difficult times. He had been offered a full-time position once businesses return to normal operations. The applicant referred to his own employment and his wife’s employment as a health care worker, as well as his participation in community services in the NT during COVID-19. Finally, the applicants requested that the Tribunal not make a decision on their case until the Subclass 489 visa application had been processed.

21. It appears that the applicant has made his best attempts to obtain employment with a suitable employer. However, in order for cl.187.233(3) to be satisfied, it needs to be the position for which he gave the declaration. The nomination has not been approved on review, and the matter was finalised by the Tribunal (differently constituted) in October 2020. The outcome of the Subclass 489 visa application is unrelated to the issue in dispute in this case. The Tribunal explained that it would be proceeding to a decision in this matter because of that and further noting that the decision on the nomination was made around 6 months ago now. While the applicant did not think it was fair that the nomination made by Albury Spice Café had not been approved and having worked there for 4 years waiting for the review of these matters, there is no dispute that the nomination has not been approved. The Tribunal understands that the applicant is disappointed about the circumstances he and his family have found themselves in regarding his previous employment and the related visa applications, and associated delays, but the issue before the Tribunal is whether cl.187.233 is satisfied at the time of this decision. As the related nomination has not been approved, cl.187.233(3) is not met and cl.187.233 is not satisfied.

22. 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

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

    Wan Shum
    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.