Shergill (Migration)

[2020] AATA 1196

Shergill (Migration) [2020] AATA 1196 (15 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karandeep Singh Shergill

CASE NUMBER:  1902141

HOME AFFAIRS REFERENCE(S):          BCC2017/1347158

MEMBER:Katie Malyon

DATE:15 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 15 April 2020 at 5:01 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – subject of an approved nomination – no response to s 359A invitation – not entitled to appear before the Tribunal – ­­­­­­decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 Home Affairs to refuse to grant the applicant, Indian national Mr Karandeep Singh Shergill, a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Shergill applied for the visa on 11 April 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).  Applicants seeking to satisfy the primary criteria must meet the 'Common criteria' as well as the criteria of one of 2 alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.

   Background

4. In the present case, Mr Shergill is seeking the visa in Direct Entry stream to continue working in the nominated position of Café or Restaurant Manager ANZSCO 141111 for Feather Dart Group Pty Ltd (the Company).

5. The delegate refused to grant the visa on the basis Mr Shergill did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application made by the Company was refused by the Department. A copy of the delegate’s decision refusing Mr Shergill’s Subclass 187 visa application was provided to the Tribunal.

6. On 31 March 2020, the Tribunal wrote to Mr Shergill 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 187 visa application. The Tribunal informed Mr Shergill that information before the Tribunal indicates that he declared in his Subclass 187 visa application that he was nominated by the Company. Further, the Tribunal informed Mr Shergill that, although the Company had sought review of the Department’s refusal of its nomination, on 27 June 2019 it was deregistered. In the circumstances, on 13 November 2019, the Tribunal found that it had no jurisdiction in relation to the Company’s application for review of the nomination and, as such, there is currently no approved nomination by the Company in respect of him. As a result, the position to which his Subclass 187 visa application relates cannot meet the criteria in cl.187.233(3) 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.

7. The Tribunal’s letter was sent to Mr Shergill at the email address set out in his review application. The letter advised Mr Shergill that, if his comments or response were not provided in writing by 14 April 2020, the Tribunal may make a decision on his review without taking any further steps to obtain his comments or response and, further, Mr Shergill would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. Mr Shergill has not provided any comments or response within the prescribed period and nor has he requested an extension of time in which to respond. In the circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, Mr Shergill 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 them to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain any comments or response from Mr Shergill.

9. 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

10. Clause 187.233 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 must 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.  Further, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. 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 (emphasis added);

    ·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.

12. The Company’s nomination application was refused by the Department on 15 October 2018. It applied to the Tribunal for review of the Department’s decision to refuse that nomination (Matter No. 1831781). However, on 13 November 2019, the Tribunal found it had no jurisdiction to review that application as the Company had been deregistered by ASIC. In the circumstances, as the nomination application made by the Company for the position of Café or Restaurant Manager to which Mr Shergill’s Subclass 187 visa application relates has not been approved, it follows that he does not meet the criteria in cl.187.233(3) 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: Mortimer J at [90]. Therefore, cl.187.233 of Schedule 2 to the Regulations is not met.

13. Mr Shergill 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 stream.  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

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

    Katie Malyon

    
    Member

    ATTACHMENT - Extract from the Migration Regulations 1994

    Schedule 2

    ..

    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.

    oOOo