Ranjeet Singh (Migration)

[2023] AATA 3461

Ranjeet Singh (Migration) [2023] AATA 3461 (14 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ranjeet Singh

CASE NUMBER:  2100887

HOME AFFAIRS REFERENCE(S):          BCC2018/962004

MEMBER:C. Packer

DATE:14 September 2023

PLACE OF DECISION:  Melbourne

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 2.13pm

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Program or Project Administrator – applicant’s nominator withdrew their nomination – applicant does not have an approved nomination that concerns him– decision under review affirmed 

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.223

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 on 13 January 2021 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 applied for the visa on 28 February 2018. 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 (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 Program or Project Administrator. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because there was no approved nominator.

5. The applicant appeared by phone before the Tribunal on 14 September 2023 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. 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. 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.

8. 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

   ·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

9. On 23 August 2023 the Tribunal invited the applicant to provide comments on or respond to information that addressed the requirements of the visa. The letter stated in part:

   The particulars of the information are:

   ·On 27 February 2018 Hydra Seal Pty Ltd (your nominator) made an application listed as Direct Entry under Regional Sponsored Migration Scheme (187 visa). The position was said to be Program or Project Administrator and nominated you.

   ·However, on 7 July 2020 the Department received the withdrawal request of the nomination application by your nominator.

   ·This means that there is no approved nomination, and no review of that nomination refusal decision pending, that concerns you.

   This information is relevant to the review because without an approved nomination, you will not meet an essential criterion for the grant of the visa.
   If we rely on this information in making our decision, the decision under review must be affirmed.  

10. The Tribunal’s letter also invited the applicant to provide information concerning his employment in Australia.

11. The applicant provided documents that showed he is employed by Aramburu Tech Solutions Pty Ltd under an employment agreement signed 21 August 2023 for an annual salary package of $62,400.

12. At hearing the Tribunal discussed the visa requirements. The applicant stated he had a new employer and asked whether that employer could meet the requirements. The Tribunal told him that a new nomination would not satisfy the requirements.

13. It is a requirement for both the Temporary Residence Transition and Direct Entry streams (cls 187.223 and 187.233 respectively) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination of a position made by a different employer.[1]

    [1] In Patel v MHA [2019] FCA 1228, the appellant had sought an adjournment to find a new employer to nominate a position for his visa application. The Court applied the obiter comment in Singh v MIBP (2017) 253 FCR 267 and found that there was no argument available for the purpose of satisfying cl 187.233 that there might be some form of substitution of employer or position (at [7]–[8]).

14. In sum, the applicant’s nominator Hydra Seal Pty Ltd withdrew their nomination on 7 July 2020. The applicant does not have an approved nomination that concerns him. Therefore, cl 187.233(3) is not met.

    Conclusion

15. 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

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

    C. Packer
    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.