Singh (Migration)

[2020] AATA 5705

Singh (Migration) [2020] AATA 5705 (2 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jobandeep Singh

CASE NUMBER:  1804564

HOME AFFAIRS REFERENCE(S):          BCC2017/3141937

MEMBER:Terrence Baxter

DATE:2 December 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 02 December 2020 at 2:23pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Office Manager – no approved nomination – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 362, 379
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

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 30 August 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 the Direct Entry stream, to work in the nominated position of Office Manager for H & R Imports & Exports Pty Ltd (the nominator).

5. The delegate refused to grant the visa on 1 February 2018 because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations which required him to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 2 January 2018 and that accordingly the applicant did not satisfy cl.187.233(3) and did not meet cl.187.233 as a whole as required.

6. The nominator sought review of the decision to refuse the nomination with the Tribunal on 22 January 2018.

7. The applicant lodged an application for review of the delegate’s decision to refuse to grant the visa with the Tribunal on 21 February 2018.

8. The review applicant was invited under s.360 of the Act to appear before the Tribunal by telephone on 16 September 2020 at 1:30 am New South Wales time. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal or may dismiss the application for review without any further consideration of the application or the information before it.

9. The Tribunal exercised its discretion to schedule the hearing to be held by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it would be reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

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

11. The hearing scheduled to be held on 16 September 2020 was to be a joint hearing with the hearing of the review application by the nominator. On 9 September 2020, the nominator requested a postponement of the hearing, advising that the principal lawyer of the firm representing the nominator had a scheduled protection visa interview on the morning of the scheduled hearing which was likely to take an extended time and that he was unable to attend the hearing. On 10 September 2020, the Tribunal advised the nominator that the request for postponement had been allowed and issued a further invitation to the nominator to appear on 23 September 2020.

12. Also on 10 September 2020, the Tribunal advised the applicant that the request for postponement had been allowed and issued a further invitation to the applicant to appear for the hearing of his application on 23 September 2020.

13. On 18 September 2020, the applicant provided to the Tribunal an appointment of a new representative in this application. The new representative advised that it did not have sufficient time to examine “the Tribunal and Department files” for the applicant and requested a postponement of the hearing. On 21 September 2020, the Tribunal advised the applicant (through his representative) that the request for postponement of his application had been allowed and that he would be notified of a new hearing date when a new date was available.

14. On 28 October 2020, the review applicant was invited under s.360 of the Act to appear before the Tribunal by telephone on 17 November 2020 at 11:00 am New South Wales time. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal or may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

15. On 10 November 2020, the Tribunal received from the applicant’s representative a further email request for postponement of the hearing, advising that the nominator and the applicant were considering their options. The representative stated that, if the Tribunal did not agree to postpone the hearing, the applicant did not wish to attend the hearing and wanted the matter to be decided on the papers.

16. The Tribunal carefully considered the request for postponement. The Tribunal decided not to postpone the hearing. The Tribunal considered that no sufficient reason for postponement of the hearing had been provided. On 11 November 2020, the Tribunal advised the applicant that the request for postponement of the hearing had been considered, but that the hearing had not been postponed. The Tribunal advised the applicant that, if he wished to have the matter decided on the papers, he should submit Part 1 of the Response to Hearing Invitation form (which allows an applicant to consent to the Tribunal making a decision on the papers) accordingly and submit the form to the Tribunal. The Tribunal did not receive a reply to that correspondence.

17. 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 was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. Correspondence from the applicant’s representative also clearly shows that the applicant was aware of the scheduled hearing. The records of the Tribunal show that a Tribunal officer contacted the representative’s office prior to the scheduled commencement of the hearing on 17 November 2020 and was advised that the applicant did not wish to attend the hearing because he did not have his documents in order. The Tribunal officer was advised that neither the applicant nor the representative would be attending the hearing. No satisfactory reason for the non-appearance has been given.

18. Where a review applicant is invited to appear before the Tribunal in accordance with s.360 of the Act but does not appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it according to s.362B(1A) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

21. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

22. 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.

23. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to have the position of Office Manager approved, with the applicant as nominee, to the Department on 30 August 2017. The nomination application was refused on 2 January 2018 and, as set out above, the nominator sought review of that decision with the Tribunal on 22 January 2018.

24. On 19 October 2020, the Tribunal (as presently constituted) confirmed the dismissal of the nominator’s application for review, thereby affirming the decision to refuse the nomination.

25. On 17 November 2020, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting him to comment on or respond to information which the Tribunal considered would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 24 September 2020, the Tribunal dismissed the application for review in
    respect of a decision to refuse an Employer Nomination lodged by H & R Imports &
    Exports Pty Ltd.

    On 19 October 2020, the Tribunal confirmed the dismissal thereby affirming the
    decision not to grant an Employer Nomination lodged by H & R Imports & Exports
    Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl.187.233(1).

    If we rely on this information in making our decision, we may find that you do not meet cl.187.233(3), which requires the nomination be approved, and affirm the decision under review.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 1 December 2020.

26. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. On1 December 2020, the representative advised the Tribunal that the applicant wanted to have his application decided on the papers.

27. The Tribunal has considered whether it should take further action to obtain the applicant’s views on the information referred to in paragraph 25 above. The Tribunal has taken into account that the applicant has been aware since 1 February 2018 of the reasons for the visa application being refused, that the implications of not providing the information requested in the invitation from the Tribunal of 17 November 2020 were set out in that correspondence and the response from the representative.

28. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicant’s views on the information referred to in the invitation from the Tribunal of 17 November 2020.

29. The Tribunal notes that the application for nomination for the position of Office Manager has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application.

30. Therefore, cl.187.233 is not met.

31. 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

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

    Terrence Baxter
    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.