Prithipal Singh (Migration)

[2023] AATA 3029

Prithipal Singh (Migration) [2023] AATA 3029 (14 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prithipal Singh

CASE NUMBER:  1921016

HOME AFFAIRS REFERENCE(S):          BCC2017/4151817

MEMBER:Katie Malyon

DATE:14 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 14 September 2023 at 9:39 am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cafe or Restaurant Manager – subject of an approved nomination – no response to s.359A letter – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Indian national Prithipal Singh, applied for the visa on 7 November 2017.  At the time of application, Class RN contained one subclass only: Subclass 187 (Regional Sponsored Migration Scheme).

3. 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, Mr Singh is seeking the visa in the Direct Entry stream to work in the nominated position of Cafe or Restaurant Manager ANZSCO 141111 with his nominator, JP Hospitality Pty Ltd (the Company).

5. The delegate refused to grant the visa on the basis Mr Singh did not meet cl 187.233 of Schedule 2 to the Regulations because his Subclass 187 visa application was not the subject of an approved nomination. Following refusal of his visa application, Mr Singh applied to the Tribunal for review of the delegate’s decision

   The Tribunal’s s 359A letter

6. On 28 August 2023, the Tribunal wrote to Mr Singh pursuant to s 359A of the Act inviting him to comment on or respond to information that the Tribunal considers would, subject to Mr Singh’s comment or response, be the reason or part of the reason for affirming the decision under review. It noted the particulars of the information are:

   ·     at the time you made your Subclass 187 visa application on 7 November 2017, you declared in your visa application that you were nominated by the Company;

   ·     the Company’s nomination was refused by the Department of Home Affairs on 11 June 2019;

   · as a consequence, the delegate refused your Subclass 187 visa application on 11 July 2019 on the basis that the Company’s nomination was not approved. This was because you did not meet cl 187.233(3) of Schedule 2 to the Regulations;

   ·     on 1 July 2019, the Company sought review of the delegate’s refusal of its nomination in the Tribunal and you also sought review of the delegate’s refusal of your Subclass 187 visa application;

   ·     on 12 June 2023, the Tribunal decided that it did not have jurisdiction to review the delegate’s refusal of the Company’s nomination as the Company was deregistered by ASIC on 20 October 2021 and its registration has not been reinstated; and,

   ·     accordingly, there is currently no approved nomination by the Company in relation to you.

7. In its s 359A letter, the Tribunal stated that this information is relevant because cl 187.233(3) of Schedule 2 to the Regulations requires the Minister must have approved the Company’s nomination and, if the Tribunal relies on this information in making its decision, it may find that the visa application is not the subject of an approved nomination. This means that Mr Singh does not satisfy cl 187.233(3) of Schedule 2 to the Regulations and, as a result, the decision under review must be affirmed.

8. The Tribunal is satisfied that its s 359A letter was properly dispatched to Mr Singh’s email address advised in his review application lodged with the Tribunal Singh. No response has been received from Mr Singh in response to the Tribunal’s s 359A letter. Mr Singh has not commented on the adverse information set out in the Tribunal’s letter and nor has he not sought additional time in which to do so.

9. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, Mr Singh is not entitled to appear before the Tribunal at a hearing. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

10. Although Mr Singh has not requested this, the Tribunal has considered whether it would be appropriate to adjourn the review under s 363(1)(b) of the Act to allow Mr Singh additional time in which to provide evidence to support his review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the recent COVID-19 pandemic, evidence that Mr Singh meets the relevant requirements of
    

    [1] [2002] FCA 617.

    [2] [2012] FMCA 28.

    cl 187.233(3) of Schedule 2 to the Regulations is likely to be forthcoming, whether he has had a fair opportunity to provide the information already, and the significance of the information to him. The Tribunal has also taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

11. In the circumstances of this case, the Tribunal considers that Mr Singh has had sufficient time to provide the requested information or seek an extension of time in which to do so. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with
    s 359C of the Act.

12. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether Mr Singh meets cl 187.233 of Schedule 2 to the Regulations.

    Nomination of a position

14. Clause 187.233 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 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.

15. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination;

    ·the nomination has been approved and has not been subsequently withdrawn (emphasis added);

    ·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 reg 1.13A and reg 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.

16. As stated above and noted in the Tribunal’s s 359A letter, the Company’s nomination was refused by the Department of Home Affairs on 11 June 2019. And, although the Company sought review of the delegate’s refusal of his nomination, on 12 June 2023 the Tribunal decided that it did not have jurisdiction to review the delegate’s refusal of the nomination as the Company was deregistered by ASIC on 20 October 2021 and its registration has not been reinstated.

17. In the circumstances, the Tribunal is satisfied that the Company’s nomination in respect of the position offered to Mr Singh and to which his Subclass 187 visa application relates has not been approved. Therefore, cl 187.233 of Schedule 2 to the Regulations is not met.

18. Mr Singh 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 stream.  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

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

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from Schedule 2 to the Migration Regulations 1994

    Subclass 187

    …

    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.

    oOOo