Sagoo (Migration)

[2021] AATA 1478

Sagoo (Migration) [2021] AATA 1478 (30 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpreet Singh Sagoo

CASE NUMBER:  1918938

HOME AFFAIRS REFERENCE(S):          BCC2018/898683

MEMBER:Mary Sheargold

DATE:30 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 30 April 2021 at 1:37pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Cook –no approved nomination – company had been deregistered –  not the subject of an approved nomination–decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

CASES
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 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 applied for the visa on 25 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 Cook (ANZSCO 351411).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the nomination application made by Tushaan Enterprises Pty Ltd had not been approved.

6. The applicant appeared before the Tribunal by telephone on 31 March 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether there is an approved nomination.

   Nomination of a position

9. Clause 187.233 as applicable in this case is set out 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. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

10. 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 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.

11. On 10 March 2021, the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting him to provide comments in writing on information that the Tribunal considered would be part of the reason for affirming the decision under review.  That adverse information was that the application for approval of the nominated position of Cook by Tushaan Enterprises Pty Ltd had been refused by a delegate of the Minister of Immigration, and that the Tribunal had found it had no jurisdiction to review the delegate’s decision.  The letter outlined that this information was relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

12. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 24 March 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments, and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

13. At 10:02pm on 24 March 2021, the applicant sent an email to the Tribunal stating that he had been very unwell and wished to postpone the hearing that was listed for 26 March 2021 and to be granted additional time to engage with the review.  He provided medical evidence to support his claim.  The Tribunal accepted the medical evidence provided and postponed the hearing until 31 March 2021. 

14. At the hearing, the applicant explained that he had worked for Tushaan Enterprises Pty Ltd at a number of locations and worked wherever he was asked to go without question or complaint.  The applicant stated that when this application was refused, he became depressed and did not work for over 4 months.  He told the Tribunal that he is now working on a casual basis as a courier. 

15. The applicant requested additional time to consult with Tushaan Enterprises and provide further evidence in support of the application. The Tribunal emphasised that the nomination application by Tushaan Enterprises had not been approved, and now could not be approved as the Tribunal had no jurisdiction to review the decision, noting that the company had been deregistered.  The applicant stated that he still wished to talk to the nominator to obtain more documents in support of the application, and the Tribunal granted him until 14 April 2021 to do so.

16. On 14 April 2021, the applicant wrote to the Tribunal again, enclosing PAYG summaries and payslips from his employment with Tushaan Enterprises, and noting he would be travelling to Brisbane in the coming weekend to meet the former director personally.  Again, the applicant requested a “couple of weeks of time more, so that I can give more information to support my case.”  The Tribunal did not receive further correspondence from the applicant, and so on 27 April 2021, the Tribunal wrote to him and advised that it would not make a decision prior to 4:00pm AEST on 29 April 2021, but may proceed to do so at any time after that.  The Tribunal noted that it would consider any documents and submissions provided by the applicant that were received prior to the Tribunal making its decision.  As at the date of this decision, no further correspondence has been received.

17. The Tribunal notes that while the payslips and PAYG statements provided demonstrate that the applicant worked for the nominating employer in the past, they do not assist him to prove he has an approved nomination as required under cl.187.233(3) of Schedule 2 to the Regulations.

18. The nominator’s nomination application was refused by the Department. As the nomination application for the position to which the applicant’s Subclass 187 visa application relates has not been approved, it follows that the applicant does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations.

19. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

20. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, he cannot overcome his current inability to meet cl.187.233(3) in relation to his application.  The nomination by Tushaan Enterprises Pty Ltd was specifically linked to his visa application, and that nomination was not, and now cannot be, approved.

21. Therefore, cl 187.233 is not met.

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Mary Sheargold
    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.