Siddhu (Migration)

[2021] AATA 5369

Siddhu (Migration) [2021] AATA 5369 (2 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpreet Singh Siddhu

CASE NUMBER:  1837590

HOME AFFAIRS REFERENCE(S):          BCC2017/3772854

MEMBER:Sean Baker

DATE:2 December 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 2 December 2021 at 3:19pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – request for delay in making a decision declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), 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 (Cth) (the Act).

2. The applicant applied for the visa on 14 October 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 (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 Code 351411).

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 associated with the application had been refused by the Department.

6. The applicant appeared before the Tribunal on 30 November 2021 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether there is an approved nomination in place for the position.

   Nomination of a position

10. 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.

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

    ·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.

12. As noted above, this application was refused by the Department on the basis that the nomination of the position mentioned in cl. 187.233(1) lodged by SAINI PTY LTD was refused by the Department on 6 November 2018.

13. I discussed this with the applicant at the hearing. He acknowledged that this had been the case but said that he had not received the natural justice letter from the Department which would have allowed him to withdraw his application and made a further application.

14. Pursuant to s. 359AA I put to the applicant for his comment or response information before me. This information was that, on 11 March 2021, the Tribunal had received a valid withdrawal from the representative of SAINI PTY LTD withdrawing the application for review of the nomination refusal by the Department. On that basis, the Tribunal (differently constituted) finalised the application of SAINI PTY LTD on 25 March 2021 on the basis that the tribunal had no jurisdiction because the application had been withdrawn. The applicant indicated he understood the information and the explanation I had given of the relevance and consequence of this information. I asked if he wished to comment or respond or needed more time. He elected to respond immediately. He stated that he had not been told by his employer that the appeal against the nomination refusal had been withdrawn.

15. He then asked for 28 days so that he could see if he could do things with other employers. His reasons for this were confused. He asked for ‘a small window to apply for the same thing.’ He then requested I lift the s. 48 bar, whilst also conceding he was barred from applying for the same class of visa. I explained I did not have the power to do so, I was reviewing only the refusal of his visa. I explained that I would not be delaying the decision on the information he had provided so he could complete a test or seek to lodge the same class of visa which, he had conceded, he was barred from doing so.

16. He asked for me to delay the decision and give him some more time so he could do an exam and take a test to fix those years he had wasted. I explained again that this did not appear to me a reason to delay making the decision.

17. I considered his reasons for requesting delay in making the decision, but they do not evidence any basis or reason which may alter or affect the decision. I have therefore decided not to delay making the decision.

18. I find that the nomination identified in cl. 187.233(1) is that of SAINI PTY LTD in relation to the applicant in relation to the nominated position of Cook. I find that this nomination was refused by the Department on 6 November 2018.

19. I find that on 11 March 2021 the Tribunal had received a valid withdrawal from the representative of SAINI PTY LTD withdrawing the application for review of the nomination refusal by the Department. I find that on that basis, the Tribunal (differently constituted) finalised the application of SAINI PTY LTD on 25 March 2021 on the basis that the tribunal had no jurisdiction because the application had been withdrawn.

20. I find that the nomination has been refused and the Tribunal has found it has no jurisdiction to review this refusal. I find therefore that the applicant does not satisfy cl. 187.233(3) because the nomination has not been 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.

    Sean Baker
    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.