Singh (Migration)

[2020] AATA 5264

Singh (Migration) [2020] AATA 5264 (11 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kulbir Singh

CASE NUMBER:  1814472

HOME AFFAIRS REFERENCE(S):          BCC2016/2863269

MEMBER:George Hallwood

DATE:11 December 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 11 December 2020 at 2:00pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct entry stream – related position nomination refused – nominating company deregistered – no jurisdiction to review nomination refusal – no response from applicant to tribunal’s invitation to comment – decision under review affirmed

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

CASE
Hasran v MIAC [2010] FCAFC 40

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 29 August 2016. 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(3) of Schedule 2 to the Regulations because the related nomination application by Shree Sai Group Pty Ltd was refused on 1 March 2018, and in the absence of an approved nomination the applicant was unable to meet the requirements of cl. 187.233 of the Regulations.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of cl. 187.233(3) which requires that the Minister has approved the nomination of the position to which the application relates.

   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 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.

10. On 27 May 2016 Shree Sai Group Pty Ltd (the Nominator) lodged an application to nominate the position to which this application relates. On 1 March 2018 the nomination application was refused. On 21 March 2018 the Nominator lodged an application for review of that decision with the Migration and Refugee Division of the Administrative Appeals Tribunal (the AAT).

11. Insert findings and reasons relating to whether the applicant meets all requirements (if one not met, no need to consider the remainder). The definitions of ‘adverse information’ and ‘associated with’ are different for visa applications made before 18 March 2018, and those made on or after that date. On 12 February 2020 the AAT decided that it no longer had jurisdiction in relation to the Nominator’s application because Shree Sai Group Pty Ltd has been deregistered on 2 June 2019 and had ceased to exist as a legal entity. For this reason the Tribunal found there was no longer a valid application for review.

12. Section 359A of the Act requires, in the conduct of a review, that the applicant be given an opportunity to comment or respond to certain information which we consider would, subject to the applicant comments or response, result in the original decision being affirmed.

13. In accordance with s359A, on 4 November 2020 the applicant was informed in writing of the adverse information that they were not the subject of an approved nomination by the Nominator.  The applicant was given an opportunity to respond by 18 November 2020 or to request an extension of time to respond. The Tribunal’s letter to the applicant advised him that he would lose his entitlement to appear before the Tribunal to give evidence or provide arguments if he did not respond by the nominated date. The letter also stated that the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

14. No response or request has been received by the Tribunal.

15. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40. In the absence of any response including a request for an extension of time, and given the absence of an approved nomination making the seeking of further information from the applicant futile, the Tribunal has decided to proceed to decision without taking further steps to obtain comments.

Requirement for an approved nomination

1. Clause 187.233(3) requires that there is an approved nomination of the position to which the application relates. In this case the Tribunal has found that there is no approved nomination as the nominator no longer exists.

2. Therefore, cl 187.233 is not met.

   CONCLUDING PARAGRAPH

3. 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

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

   George Hallwood
   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.