Ranjit Singh (Migration)

[2019] AATA 2071

Ranjit Singh (Migration) [2019] AATA 2071 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ranjit Singh

CASE NUMBER:  1717735

HOME AFFAIRS REFERENCE(S):           BCC2016/2680054

MEMBER:Katie Malyon

DATE:18 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 18 April 2019 at 3:00 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Fleet Manager – no jurisdiction to review nomination application – no approved nomination – not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 359A, 360, 363A
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 186.233

CASES
Hasran v MIAC [2010] FCAFC 40
Singh v MIBP [2017] FCAFC 105

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 on 24 July 2017 to refuse to grant the applicant, Mr Ranjit Singh, an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Singh applied for the visa on 13 August 2016.  At the time of application, Class EN contained only one subclass, Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

4. In the present case, Mr Singh is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Fleet Manager ANZSCO code 149411.

5. The delegate refused to grant the visa on the basis that Mr Singh did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination application made by his prospective employer, Randhawa Roadways Pty Ltd (the Company), was refused by the Department.

   Background

6. Mr Singh was nominated to fill the position of Fleet Manager with the Company.  However, the Company’s nomination was refused by the Department on 13 June 2017.  As a result, the Department refused Mr Singh’s Subclass 186 visa application.  The Company sought review of the delegate’s refusal of its nomination application (Matter No. 1714320).  On 18 January 2019, the Tribunal made a decision that it did not have jurisdiction to review the delegate’s decision refusing the Company’s nomination.

7. On 2 April 2019, the Tribunal wrote to Mr Singh pursuant to s.359A of the Act inviting him to comment on, or respond to, information which would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse his Subclass 186 visa application. The Tribunal informed Mr Singh that it had made a decision that it did not have jurisdiction to review the delegate’s decision to refuse the Company’s nomination application and so the Company’s nomination application for the nominated position has not been approved. As a result, the position to which his Subclass 186 visa application relates cannot meet the criteria in cl.186.233 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

8. In its s.359A letter, the Tribunal requested Mr Singh to provide any comments or response to the information in the Tribunal’s letter on or before 16 April 2019. The Tribunal’s letter to Mr Singh was sent to the email address as advised by him to the Tribunal on 22 November 2018. No response has been received from Mr Singh.

9. As Mr Singh has not provided any response to the Tribunal’s s.359A letter, s.359C of the Act applies and, pursuant to s.360(3) of the Act, he is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

11. Clause 186.223 of Schedule 2 to the Regulations, 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 is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant.  The position must be the same one that was the subject of the declaration made by the visa applicant that is required to be made as part of the Subclass 186 visa application.

12. In addition, this criterion also requires that:

    ·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 of the Regulations), 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.

13. The Company’s nomination application was refused by the Department and, subsequently, the Tribunal made a decision that it did not have jurisdiction to review the Department’s decision. Mr Singh has failed to provide any response to, or comment on, this information when requested to do so by the Tribunal in its s.359A letter. In the circumstances, as the nomination application made by the Company for the position of Fleet Manager to which Mr Singh’s Subclass 186 visa application relates has not been approved, it follows that he does not meet the criteria in cl.186.233(2) of Schedule 2 to the Regulations. Therefore, cl.186.233 of Schedule 2 to the Regulations is not met.

14. Mr Singh has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from Part 186 of Schedule 2 to the Migration
    Regulations 1994

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)    The Minister has approved the nomination.

    (3)    The nomination has not subsequently been withdrawn.

    (3A)   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.

    (4)    The position is still available to the applicant.

    (5)    The application for the visa is made no more than 6 months after the Minister approved the nomination.

    oOOo