Singh (Migration)

[2020] AATA 4158

Singh (Migration) [2020] AATA 4158 (22 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurvinder Pal Singh

CASE NUMBER:  1813201

HOME AFFAIRS REFERENCE(S):          BCC2016/2156150

MEMBER:Terrence Baxter

DATE:22 September 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 22 September 2020 at 4:16pm

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), 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 (the Act).

2. The applicant applied for the visa on 24 June 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 (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 nomination stream, or the Direct Entry nomination stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry nomination stream, to work in the nominated position of Café or Restaurant Manager.

5. The delegate refused to grant the visa on 26 April 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 Rahshi Group Pty Ltd as trustee for the Rahshi Family Trust (the nominator) was refused on 15 March 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 applicant lodged an application for review of the delegate’s decision with the Tribunal on 8 May 2018.

7. The applicant appeared before the Tribunal on 15 September 2020 to give evidence and present arguments.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was 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.

9. The applicant was represented in relation to the review by his registered migration agent. The representative also attended the Tribunal hearing by telephone.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

12. 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 nomination 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.

13. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

14. 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 the Department to have the position of Café or Restaurant Manager approved, with the applicant as nominee, on 24 June 2016. The nomination application was refused on 15 March 2018 and the nominator sought review of that decision with the Tribunal on 1 April 2018.

15. The records of the Tribunal show that the nominator withdrew the application for review of the delegate’s decision to refuse the nomination on 11 September 2020.

16. At the hearing, the Tribunal gave to Mr Singh, pursuant to the provisions of s.359AA of the Act, particulars of the information regarding the withdrawal of the nomination application. The Tribunal explained to Mr Singh that this information was relevant to the requirement that the Minister has approved the nomination referred to in his visa application. The Tribunal explained that the information, if relied upon, could cause the Tribunal to find that he did not meet the requirements of the Regulations, which required that the nomination be approved, and that the decision to refuse his application could be affirmed. Mr Singh was invited to comment on or respond to the information. He was advised that if he needed time to respond to or comment on the information, he could apply for additional time. Through his representative, he requested an adjournment of five minutes to respond. An adjournment of 10 minutes was granted.

17. Mr Singh stated that he was not aware of the withdrawal of the nomination application until being advised to that effect at the hearing. He gave a history of his employment with the nominator, saying that he had not been employed by that company since approximately April 2018. He referred to his nomination for the position of Café or Restaurant Manager. He said that he was not aware that the nomination was for that position. He said that the business was a cake and pastry business and that he should have been nominated for the position of Store Manager.

18. The applicant’s representative made a written submission to the Tribunal dated 7 September 2020. The representative described the circumstances relating to the lodgement of the nomination application and the choice of the position stated in the application. The submission describes the applicant as a hard-working and law-abiding citizen who is the victim of a situation created either by the negligence of his former migration agent or carelessness by the nominator. At the hearing, the representative submitted that the applicant was a victim of poor practices by the nominator or others but acknowledged that the applicant had no further options relating to this application.

19. The Tribunal notified the applicant that it accepted that the withdrawal of the nomination application may have occurred through circumstances beyond his control but advised him that the withdrawal caused serious problems for his visa application. The applicant said that he understood this to be the case.

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

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 nomination 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 nomination 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.

    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

    (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.