Singh (Migration)

[2020] AATA 5201

Singh (Migration) [2020] AATA 5201 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Satpinder Singh
Ms Sapna

CASE NUMBER:  1921378

HOME AFFAIRS REFERENCE(S):          BCC2018/879939

MEMBER:C. Packer

DATE:27 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 27 October 2020 at 11:04am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Restaurant Manager – subject of an approved nomination – later nomination of a position made by a different employer – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Hasan v MIBP [2016] FCCA 1049
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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 23 February 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). 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.

3. In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Restaurant manager.

4. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no approved nomination.

5. The applicant appeared before the Tribunal on 27 October 2020 by telephone to give evidence and present arguments. His representative also attended.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. 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.

8. 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 r.1.13A and r.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.

9. In this case, on 23 February 2018 G FORTUNE PTY LTD (the nominator) made an application listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa). The position was said to be Restaurant Manager 141111, and nominated the applicant. However, on 1 July 2019 a delegate of the Minister rejected the application. The nominator did not appeal the nomination refusal decision.

10. On 2 October 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to comment on or respond to certain information which the Tribunal considered would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review.

11. On 16 October 2020 the applicant responded and stated in part:

    Immigration History of Satpinder Singh

    He came to Australia in May 2014 to pursue masters in International Tourism and Hotel management from Southern Cross University. In July 2016 he successfully completed his master degree. After completing his study, he was very enthusiastic to find a job in a five-star hotel and after few years’ experience become manager and later work as General Manager in a five/six-star hotel. He soon realised that it was not an easy task to reach his goal in the competitive hospitality employment sector. After lots of efforts he got an entry level job in front office in a Gold Coast resort named Sheraton Grand Mirage resort where for nearly twenty months he worked as a porter/Guest service agent.

    In Jan 2018 he found out about a job opening for a Restaurant Manager at Gympie. He applied for the position and luckily was also approved by the company. Considering his skills and qualification his employer decided to sponsor him in RSMS (187) stream so that he could work for his business on long term basis.

    The nomination and his visa application were lodged in Feb 2018 and as per his contract he had to resume duties after the visa grant therefore to gain further experience in the hospitality industry he had to work wherever he could find a job and eventually in November 2018 he became Night Manager at Ibis/Pullman Hotel Brisbane Airport. Unfortunately, in July 2019 G Fortunes Pty Ltd's employer nomination was refused and consequently his Visa application was also refused which was very stressing and depressing as his dream of gaining experience and then working at the highest position in a five star was being shattered.

    Reply to the letter dated 02 October 2020

    As stated in the letter

    “G FORTUNE PTY LTD (your nominator) made an application listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa). The position was said to be Restaurant Manager, and nominated you. However, on 1 July 2019 a delegate of the Minister rejected the application. Your nominator did not appeal the nomination refusal decision. This means that there is no approved nomination, and no review of that nomination refusal decision pending, that concerns you.
    This information is relevant to the review because without an approved nomination, you will not meet an essential criterion for the grant of the visa.”

    On behalf of our client we state that he is highly confused and shocked to see the letter dated 2 October 2020 because his employer confirmed that the appeal for the nomination refusal was lodged with in the specified time of 21 days.
    As informed by our client

    • He was informed by his employer G Fortune PTY LTD that the appeal was lodged in AAT on 12 July 2019 but to be sure he requested his employer to send the acknowledgement letter to him.

    • Later on, the employer instructed the agent to send a screen shot of the receipt.

    • The agent did not send the screen shot but sent him the details as under

    ➢ Tax Invoice/receipt no: [provided].

    ➢ The online lodgement number [provided].

    ➢ After few days, on the instructions of his employer the agent sent a screen shot of lodgement of the nomination appeal which had the same details. (The screen shot attached as evidence of the lodgement)

    Our client humbly requests to find out from the concerned office and recheck the details given above. The screen shot confirms that the appeal for nomination refusal was lodged by G Fortune PTY LTD on 12/07/2019 at 3:07:34PM which was also confirmed by the employer.
    He is very confused and want to know;

    (i) Whether the appeal for nomination refusal was lodged or not?

    (ii) Whether the appeal for nomination refusal was withdrawn by the employer after lodgement?

12. The Tribunal next sent a letter dated 19 October 2020 that stated in part:

    In a letter dated 2 October 2020 the Tribunal invited you to comment by 16 October 2020 on the information before the Tribunal that:

    ·G FORTUNE PTY LTD (your nominator) made an application listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa). The position was said to be Restaurant Manager, and nominated you. However, on 1 July 2019 a delegate of the Minister rejected the application.

    ·Your nominator did not appeal the nomination refusal decision. This means that there is no approved nomination, and no review of that nomination refusal decision pending, that concerns you.

    Your response received by the Tribunal on 16 October 2020 indicates in part that:

    ·You were nominated by the company to work as a Restaurant manager at a restaurant in Gympie.

    ·You have never worked for the nominator, either before the nomination was lodged (on 23 February 2018), or subsequently.

    ·The nominator told you that the nomination refusal had been appealed to the AAT on 12 July 2019.

    ·They had verified making the appeal by providing you with a tax invoice/receipt number and an online lodgement number, and later with a screen shot of lodgement of the nomination appeal which had the same details.

    The member has asked me to advise you that the tax invoice/receipt and online lodgement numbers are for a review of a different nomination refusal that concerns a different nominee. That review does not relate to you

    The information given to you by the Tribunal that “Your nominator did not appeal the nomination refusal decision” encompasses information from the Department’s systems that confirms the nomination review relates to a different nominee.

    If you no longer want to proceed with your application, you should notify us of this in writing as soon as possible.

13. The applicant indicated he wished to proceed with the hearing.

14. At hearing the Tribunal discussed the foregoing information. 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 1114C(3)(d) of Schedule 1 was made. This requirement could not be satisfied by a later nomination of a position made by a different employer, and on current authority 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. [see Hasan v MIBP [2016] FCCA 1049; Singh v MIBP [2017] FCAFC 105]. The Tribunal pointed out that it follows that where a nomination is refused, the visa applicant will not meet the requirements (cl.187.233).

15. The applicant responded that he had been shocked when he received the Tribunal advice as he had believed a nomination appeal had been lodged. The Tribunal asked whether he had subsequently spoken to the nominator, and he responded that he had but the nominator said the nomination appeal had been made. The Tribunal then told the applicant that as he did not satisfy the requirements, the Tribunal would proceed to a decision.

16. The Tribunal finds that there is no approved nomination and so cl.187.233(3) is not met.

17. 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

18. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    C. Packer
    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.