Sethi (Migration)

[2019] AATA 4280

Sethi (Migration) [2019] AATA 4280 (27 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tisham Deep Singh Sethi

CASE NUMBER:  1900695

HOME AFFAIRS REFERENCE(S):           BCC2017/2205698

MEMBER:R. Skaros

DATE:27 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 August 2019 at 4:32pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream –the nomination of the applicant was refused–  not the subject of an approved nomination – sponsoring employer has ceased operating –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 379
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 Home Affairs 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 22 June 2017. 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 with C P Singh & K Singh.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination of the position lodged by C P Singh & K Singh in relation to the applicant was not approved.

6. On 21 June 2019 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 9 July 2019. The invitation stated that if the applicant did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

7. On Saturday 6 July 2019, the applicant wrote to the Tribunal to request a postponement of the hearing. The applicant provided a medical certificate dated 4 July 2019 which stated that the applicant has a medical condition and will be unfit for work and travel from 4 July 2019 to 9 July 2019 inclusive. The Tribunal wrote to the applicant on 8 July 2019 advising that it has carefully considered his request for a postponement of the hearing but has decided not to grant it.  The Tribunal informed the applicant that it arranged to conduct the hearing by telephone instead. Attempts to contact the applicant by telephone in relation the Tribunal’s consideration of his postponement request were unsuccessful. The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

8. On the day of the hearing, the Tribunal attempted to call the applicant on his mobile number on numerous occasions but he did not answer. The applicant did not contact the Tribunal to explain why he could not appear at the hearing by telephone.

9. The Tribunal did not proceed to a decision in this case and on 10 July 2019 decided to send the review applicant an invitation to comment on or respond to information in accordance with the procedure in s.359A of the Act. The information related to the outcome of the review of the nomination refusal, in which the Tribunal (differently constituted) found it had no jurisdiction. The Tribunal explained to the applicant that the information is relevant because cl.187.233(3) requires that the relevant nomination has been approved. The Tribunal explained that if it relied on the information it would find that the nomination in relation to him has not been approved and he would not meet the requirements of cl.187.233(3).

10. The applicant responded by email on 23 July 2019 stating that the nomination was declined by the Tribunal without considering the potential impact on the business and the visa applicant. He requested an opportunity to provide detailed submissions to the Department. An officer of the Tribunal sought further clarification from the applicant about his response, to which the applicant responded by email stating that he is unrepresented and requires time to seek legal assistance and make submissions.

11. The Tribunal considered it appropriate to invite the applicant to another hearing so as to explain to him the requirements and the adverse information regarding the status of the nomination. Accordingly, on 24 July 2019 the Tribunal wrote to the review applicant advising that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 12 August 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

12. On 10 August 2019, in an email to the Tribunal, the applicant stated that the business that sponsored him had already closed and at present he has nothing to further to say other than to request another chance to find another sponsor. He stated that this is the only information he can give and he will wait for the Tribunal’s decision.

13. 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 has been properly invited to a hearing in accordance with s.379A(5). The applicant has received the invitation to appear before the Tribunal but appears to have declined that invitation on the basis that his sponsoring employer has ceased operating and he has nothing further to say about that matter. In these circumstances, the Tribunal has decided to proceed to a decision on the information before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the associated nomination has been approved.

    Nomination of a position

16. 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, this criterion requires that the nomination has been approved.

17. The applicant applied for the visa on the basis of a nomination of a position made by C P Singh & K Singh (the associated nomination). On 13 November 2018 the associated nomination was refused by the Department. Consequently, the applicant’s visa application was also refused.

18. The nominator applied for review of the decision refusing the associated nomination, however, the Tribunal found that it did not have jurisdiction in respect of that application for review.

19. The applicant was invited to provide comments on information that the Tribunal considered would be part of the reason for affirming the decision under review in writing. The information, as noted above, related to the Tribunal’s finding that it did not have jurisdiction to review the application for review made by the nominator C P Singh & K Singh, being the relevant nomination against which the applicant made the required declaration in his visa application. The Tribunal has considered the applicant’s responses that the decision to refuse the nomination was made without considering the impact on the nominator and the visa applicant and his subsequent response that the nominator’s business has now closed. These submissions do not assist the applicant in the present case.

20. The issue in this case relates to whether the associated nomination, against which the applicant made the relevant declaration in his visa application, has been approved. The evidence before the Tribunal is that the associated nomination has been refused. That decision has not been set aside on review, and the Tribunal found that it did not have jurisdiction to review the nomination refusal. In the circumstances, the Department’s decision refusing the associated nomination stands.

21. The Tribunal has considered the applicant’s request to find another sponsor (nominator). The Tribunal notes however that this would not assist the applicant in this review because only the nomination of the position made at the time of the visa application, against which the applicant made the relevant declaration in the visa application form, can be relied upon to meet the requirements in cl.187.233. In the circumstances, it would be futile to delay the making of this decision because a new nomination would not assist the applicant in this case.

22. On the evidence before it, the Tribunal finds that the associated nomination has not been approved. The requirement in cl.187.233(3) is therefore not met. Therefore, cl.187.233 is not met.

23. 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

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

    R. Skaros
    Senior 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.