SAINI (Migration)

[2019] AATA 3017

SAINI (Migration) [2019] AATA 3017 (30 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satnam Singh Saini

CASE NUMBER:  1617551

HOME AFFAIRS REFERENCE(S):          BCC2015/3192311

MEMBER:C. Packer

DATE:30 April 2019

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 2019 at 5:18pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – real estate agent – no approved nomination – non-attendance at hearing – tribunal affirmed refusal of business nomination – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A,360, 379A(5)
Migration Regulations 1994, Schedule 2, cl 187.233

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

2. The applicant applied for the visa on 31 October 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of real estate agent. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because on 5 September 2016 the nomination of an occupation by Aus Real Estate Pty Ltd had been refused.

5. The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 30 April 2019 at 2.00pm. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal or may dismiss his application for review without any further consideration of the application.

6. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing (s.379A(5)), the invitation has not been returned to sender, and that on 18 and 29 April 2019 two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given. In these circumstances, the Tribunal has decided to proceed to make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

7. 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

8. 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.

9. 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.

10. The nominator Aus Real Estate Pty Ltd applied to the Tribunal for a review of the delegate’s decision of 5 September 2016 to refuse the nomination of an occupation. However, on 21 March 2019 the Tribunal affirmed the decision not to approve the business nomination. The Tribunal put this information to the applicant in a letter dated 25 March 2019, pursuant to s.359A. The applicant responded on 3 April 2019 and stated his employer was overseas and would not be able to attend the hearing, and asked for extra time “so that my employer and me can both attend”. On the basis that this was a response to the s.359A letter, the Tribunal therefore proceeded to a hearing.

11. In this case the nomination by Aus Real Estate Pty Ltd had been refused, and the Tribunal on 21 March 2019 affirmed the decision not to approve the business nomination.

12. Therefore, cl.187.233 is not met.

13. 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

14. 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

    (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.