RUPINDER SINGH (Migration)

[2018] AATA 5684

RUPINDER SINGH (Migration) [2018] AATA 5684 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr RUPINDER SINGH
Mrs ROOP RAJ KAUR
Ms TARANPREET KAUR
Mr SAMARVIR SINGH

CASE NUMBER:  1702609

HOME AFFAIRS REFERENCE(S):           BCC2015/3754955

MEMBER:Mr S Norman

DATE:20 December 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 20 December 2018 at 2:25pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Customer Service Manager (ANZSCO: 149212) – no approved nomination – not the subject of an approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, r 1.13, Schedule 2, cls 187.233, 187.242, 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). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 8 December 2015. 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 the Direct Entry stream, to work in the nominated position of Customer Service Manager (ANZSCO: 149212). The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations as the nomination approval had been refused.

5. The applicant appeared before the Tribunal on 22 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kirpal SIDHU (the sponsor). The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether cl.187.233 is met.

   Nomination of a position

8. 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. 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.

9. On 8 December 2015, K & P SIDHU INVESTMENTS PTY LTD (the ‘nominator’), lodged a nomination approval application for a Regional Sponsored Migration Scheme – visa subclass 187 in the Direct Entry Stream.  The office of the nominator’s business is at Coffs Harbour, the nominated position was for a Customer Service Manager (ANZSCO: 149212[1]); and the nominee was Rupinder SINGH. On 30 January 2017, the nomination application had been refused by a delegate. The delegate went on to conclude that as the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, he therefore did not meet cl.187.233. Accordingly, the criteria for the Regional Sponsored Migration Scheme (subclass 187) visa had not been satisfied.

   [1] Department – 484.

10. Next the delegate also considered whether the criteria for the grant of the Regional Employer Nominated (subclass 187) visa were satisfied in any other stream within the visa subclass. However, as cl.187.233 was not satisfied, the criteria for the grant to the visa in the Temporary Residence Transition stream were also not satisfied (being cl.187.242). The delegate also considered whether cl.187.311 had been met (member of the family unit). However, as neither the applicant nor any member of his family unit had satisfied the primary criteria for the grant of a subclass 187 visa, cl.187.311 was not satisfied. By migration agent submissions dated 16 November 2018,[2] further evidence was lodged with the Tribunal, relating to the application. The Tribunal has had regard to same prior to finalising this decision.

    [2] Tribunal – from folio 63.

11. By s.359A letter dated 30 November 2018 (dispatched by email to the authorised recipient), the Tribunal wrote to the applicant and advised that subject to their comments, the following may be the reason or part of the reason, for affirming the decision under review:

    On 29 November 2018, the Tribunal affirmed the Department’s decision not to approve the nomination in relation to you made by your nominating employer (K & P SIDHU INVESTMENTS PTY LTD).

12. The applicant was also advised this information was relevant because cl.187.233(3) requires that the nomination made in relation to the applicant by his nominating employer had been approved. Further, that if the Tribunal relied on this information, it may find the nomination had not been approved and consequently, the decision under review would be affirmed. The applicant was requested to respond in writing by 14 December 2018. No response had been received at the time and date of this decision.

13. That being said, based on the evidence before the Tribunal, I am not satisfied the applicant has met cl.187.233(3). Further, cl.187.233 is not met. Also, as neither the applicant nor any member of his family unit had satisfied the primary criteria for the grant of a subclass 187 visa, cl.187.311 was not satisfied.

14. 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

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

    Mr S Norman
    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.