SINGH (Migration)

[2021] AATA 4111

SINGH (Migration) [2021] AATA 4111 (26 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amarjit Singh

CASE NUMBER:  1830012

HOME AFFAIRS REFERENCE(S):          BCC2017/460471

MEMBER:Alison Mercer

DATE:26 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa.

Statement made on 26 August 2021 at 11:50am

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 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413
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 4 February 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 Café or Restaurant Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, which required that he was the subject of an approved nomination by his employer. The delegate found that the nomination of the applicant by his employer, Aroroa G Pty Ltd, had been rejected by the Department on 24 August 2018.

6. The Tribunal received a review application from the applicant on 14 October 2018, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Bikram Sandhu, as his representative and authorised recipient for correspondence. The applicant subsequently appointed another registered migration agent, Mr Manoj Nanda, to these roles.

7. On 21 April 2021, the applicant advised the Tribunal that his agent no longer acted for him and that he wished all correspondence to be sent directly to him.

8. On 26 July 2021, the Tribunal wrote to the applicant to invite him to a telephone hearing on 20 August 2021.

9. On 27 July 2021, the applicant indicated that he would attend the hearing.

10. On 3 August 2021, the Tribunal wrote again to the applicant inviting him to comment on or respond to information held by the Tribunal, pursuant to s.359A of the Act. The Tribunal advised the applicant that although his employer, Arora G Pty Ltd, had lodged an appeal with the Tribunal against the Department’s refusal of its nomination of him, the Tribunal (differently constituted) made a decision on 28 April 2021 that it had no jurisdiction to review the refusal decision, as the employer had withdrawn the review application. The Tribunal noted that this indicated that the applicant was not the subject of an approved nomination by his employer and thus appeared not to meet cl.187.233. It further noted that its legal view was that a new nomination by that, or any other employer, would not satisfy cl.187.233, particularly in light of major legislative amendments that had taken place affecting subclass 187 visas and their associated nominations on 18 March 2018. The Tribunal advised the applicant that if it found that he did not meet cl.187.233, then it would have to find (given he had made no claims against any other subclass 187 stream) that he did not meet the criteria to be granted a subclass 187 visa. The Tribunal advised that this would be the reason (or part of the reason) to affirm the decision under review, and invited the applicant to provide comments or a response to this information by 17 August 2021.

11. In addition, the Tribunal noted that although the applicant’s former agent had requested that the Tribunal add the applicant’s wife and daughter (Neetu and Japjot Kaur) to the review application in July 2020, it appeared that the Tribunal had no jurisdiction in relation to them, as they were not in the migration zone (Australia) at the time of the visa application or at the time that the delegate’s decision was made, and therefore were not validly included in the review application. The Tribunal invited any comments on this view by 17 August 2021 also.

12. The Tribunal noted that if the applicant did not provide a response or comments to the s359A information, or ask for an extension of time to do so, by 17 August 2021, then he would lose his entitlement to a hearing, and the hearing scheduled for 20 August 2021 would be cancelled.

13. The Tribunal did not receive a response or comments, or a request for an extension of time to provide these, from the applicant by 17 August 2021.

14. On 18 August 2021, the Tribunal wrote gain to the applicant to advise that, as a result the failure to respond to the s.359A letter of 3 August 2021, the applicant had lost his entitlement to a hearing and the hearing scheduled for 20 August 2021 had been cancelled. The Tribunal advised that if he had any further material in support of his case that he wished to be considered, he should provide it by 25 August 2021, after which the Tribunal would make a decision on the available evidence.

15. The Tribunal did not receive any further material or response from the applicant by 25 August 2021.

16. The Tribunal is satisfied that its letter of 3 August 2021 was sent to the email address nominated for correspondence by the applicant in his email of 21 April 2021, and there is no evidence in the Tribunal’s electronic records that the email was undeliverable or not delivered.

17. The Tribunal notes that it has no power to extend the period to respond to an invitation when a request for an extension is received after the initial prescribed period has passed: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 at [48]. As above, no extension request was received in the prescribed period. Nor did the applicant provide comments or a response to the information in the Tribunal’s letter in the prescribed period. Accordingly, the applicant has lost his entitlement to have a hearing: s.360(3).

18. The Tribunal has considered whether to defer making a decision for a further period, but – in view of the fact that the applicant has not provided any information to the Tribunal to date, the fact that the legal criterion in dispute is relatively confined, the fact that the applicant was given additional time to provide any relevant information after the hearing was cancelled, and the fact that the applicant has had the assistance of a registered migration agent for at least part the conduct of its review – the Tribunal has elected not to do so and instead has proceeded to make its decision on the available evidence. It considers that it is reasonable to do so in these circumstances.

19. For the following reasons, the Tribunal has concluded that the decision under review to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

20. 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.

21. 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.

22. As noted above, the delegate’s decision record (a copy of which was provided to the Tribunal by the applicant), the nomination of the applicant by Arora G Pty Ltd, was refused by the Department on 24 August 2018.

23. As set out in the Tribunal’s letter of 3 August 2021, although Arora G Pty Ltd sought review of that refusal decision with the Tribunal, the Tribunal (differently constituted) found it had no jurisdiction to review that decision on 28 April 2021, after the employer withdrew the review application.

24. Therefore, there is no evidence before the Tribunal that the applicant is the subject of an approved nomination by that (or any other) employer. 

25. The Tribunal notes that it is a requirement for the Direct Entry stream (cl.187.233) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2]

    [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).

    [2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186)  - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

26. This was the view taken in Singh v MIBP [2017] FCAFC 105[3]. The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.[4]

    [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

    [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

27. Although the Court’s comments were, strictly speaking, obiter, they are nonetheless persuasive in relation to subclass 187 visas in both the TRT and DE streams. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.187.223 or cl.187.233 (as applicable) unless there is also a review of that decision pending.  There is no longer a nomination review pending in this case.

28. Moreover, the Tribunal notes that legislative changes took place on 18 March 2018 which affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version.  While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.187.233 in relation to a subclass 187 visa application made prior to 18 March 2018, as is the case here.

29. Accordingly, the Tribunal finds that the applicant cannot meet cl.187.233(3) and thus cannot meet cl.187.233 as a whole.

30. 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.

    No jurisdiction in relation to the applicant’s wife and daughter

31. As noted above in paragraph 10, although the applicant and his former agent asked to have the applicant’s spouse and daughter (Neetu and Japjot Kaur) added to the review application after it had been made, the Tribunal finds that it has no jurisdiction to review the Department’s decisions in relation to them, as their movement records indicate that they were not in the migration zone (Australia) at the time that the visa application was made on 4 February 2017 or at the time that the review application was made on 14 October 2018. A decision to refuse a subclass 187 visa onshore is reviewable under s.338(2) but only for those visa applicants who were in the migration zone at the time that the visa application was made, and when the review application was made (see s.347(3)). As the movement records indicate that Neetu and Japjot Kaur were outside the migration zone on these dates (they arrived in Australia on 7 November 2018), the Tribunal has no jurisdiction to add them to the review application or to review any decision to refuse them subclass 187 visas.

    DECISION

32. The Tribunal affirms the decision not to grant the named applicant a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa.

    Alison Mercer
    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.