Singh (Migration)

[2020] AATA 2275

Singh (Migration) [2020] AATA 2275 (29 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lakhwinder Singh
Mrs Kamal Preet Kaur

CASE NUMBER:  1812824

HOME AFFAIRS REFERENCE(S):          BCC2016 / 1996357

MEMBER:Susan Trotter

DATE:29 May 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 29 May 2020 at 5:02pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related position nomination refused – application for review of refusal withdrawn – request for adjournment pending outcome of application for another visa subclass – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 on 23 April 2018 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 9 June 2016. The first-named applicant, (the applicant) is a 34-year-old citizen of India. The second-named applicant is a 33-year-old citizen of India and is identified in the visa application as being the wife of the applicant.

3. 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.

4. In the present case, the applicant, as primary visa applicant, applied for the visa in the Direct Entry stream, to work in the nominated position of Cook for Anita and Company Pty Ltd ATF Kumar Family Trust (the nominator), the applicant for approval of a nomination in relation to the applicant for the nominated position. The second-named applicant applied on the basis of being a member of the family unit of the applicant.

5. The delegate refused to grant the visas on the basis that cl.187.233(3) of Schedule 2 to the Regulations was not met because the associated nomination had not been approved as required. The delegate also found that the second-named applicant could not be granted a Subclass 187 visa, as she did not meet the secondary visa criterion (cl.187.311) requiring her to be a member of the family unit of a person who met the primary visa criteria.

6. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 4 May 2018 and provided the Tribunal with a copy of the delegate’s decision.

7. The applicant appeared before the Tribunal by telephone on 27 May 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

   Nomination of a position

10. 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 application was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. In addition, this criterion also requires that:

    (a)  the person who will employ the applicant is the person who made nomination;

    (b)  the nomination has been approved and has not been subsequently withdrawn;

    (c)   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;

    (d)  the position is still available to the applicant; and

    (e)  the visa application was made no more than six months after the nomination of the position was approved.

12. As noted in the delegate’s decision, and as discussed with the applicant at hearing, the nomination application lodged by the nominator nominating the applicant for the position of Cook was refused by the Department on 5 March 2018.

13. The applicant told the Tribunal that the restaurant is not operating anymore and that there is no approved nomination, but he did have an approved nomination when he had a Subclass 457 visa. The Tribunal discussed with the applicant that there needs to be an approved nomination associated with his Subclass 187 visa application and the approved nomination for his previous Subclass 457 visa does not satisfy the requirement in issue. The applicant said he should be given a chance to find another sponsor. He has been in Australia for 12 years and is a skilled worker. The Department took over two years to make a decision on his application and circumstances have now changed. The Tribunal acknowledgment the time elapsed since the applicants’ visa application but noted that a requirement for the visa to be granted is that there be an approved nomination by a sponsor linked to the applicant’s Subclass 187 visa application and that sponsorship or nomination by another nominator could not satisfy the necessary requirement for the visa. The applicant responded that the nomination was refused because it was said that the nominator was not earning enough money to pay an overseas worker but after the nomination application was refused he was working there full-time as a full-time worker until the restaurant was closed and he was being paid, including his superannuation and everything.

14. The Tribunal acknowledged this information but discussed with the applicant that nevertheless based upon the information before it, it would not be appropriate to delay making a decision to allow the applicant to find another sponsor because it would not change the decision that the Tribunal could make pursuant to the legislation.

15. The applicant stated he has applied for a Subclass 489 visa and because he was holding a Bridging Visa A, the Department asked him to leave the country and apply for the visa, which he did. He visited his family and is back and asked that the Tribunal ‘drag the application out a little longer’ for him so that he could await the decision on the Subclass 489 visa. The Tribunal discussed with the applicant that it is not the role of this Tribunal, in circumstances where it has a statutory obligation to be quick, to ‘drag out’ its decision in circumstances where any adjournment cannot alter the decision to be made, so as to enable an applicant to consider and/or await other visa/migration options.

16. The Tribunal put to the applicant[1], that, additionally, there was information before the Tribunal that following the refusal of the nomination application, the nominator sought review of that decision and on, 30 January 2020, this Tribunal (differently constituted) found that it had no jurisdiction to consider that application because the nominator withdrew the application such that there was no longer a valid application for review. The Tribunal explained to the applicant that this information was relevant to the review because if the Tribunal relied upon this and the other information before it and found that there was no approved nomination and no pending review, meaning that there was no prospect that the nomination refusal decision could be changed, it would be the reason or part of the reason to affirm the decision under review to refuse to grant the visa to the applicant as primary applicant, and consequently to also refuse to grant the visa to the second-named applicant.

    [1] Pursuant to procedure set out in section 359AA of the Act

17. The applicant told the Tribunal that he understood the information and why it was relevant but did not choose to comment or respond to the information, further to his previous comments, as already canvassed in these Reasons.

18. The Tribunal acknowledges the applicant has lived in Australia for several years, that he worked for the nominator for some time after the nomination was refused despite the application apparently being refused on the basis that the nominator could not pay his wages, that he is awaiting advice as to whether his Subclass 489 visa application is successful and the other matters raised by the applicant.

19. However, as discussed with the applicant at the hearing, the issue before the Tribunal relates to whether the associated nomination has been approved and there is no provision in the legislation to take into account discretionary matters such as the applicants’ circumstances and the Tribunal must make its decision in accordance with the applicable legislative provisions.

20. The Tribunal notes that it also carefully considered the applicant’s request that the Tribunal adjourn its decision to enable him to await the outcome of another visa application.

21. The Tribunal has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making processes. The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment. The Tribunal has accordingly carefully considered all of the circumstances pertaining to the present application for review in considering whether to grant an adjournment. As already noted, given the Tribunal has a statutory obligation to pursue the objective of providing a mechanism of review that includes being quick, in circumstances where on the evidence before it there is no evidence that a necessary requirement for the visa is met, or can be met, the Tribunal concluded that it is not appropriate or reasonable to adjourn as requested.

22. The issue before the Tribunal is whether the nomination associated with the applicant’s visa application has been approved. The evidence before the Tribunal indicates that the associated nomination application has been refused and that there is no pending review of that nomination refusal. As the relevant nomination has not been approved, it follows that the applicant does not meet the requirements of cl.187.233(3). Therefore, cl.187.233 is not met as a whole.

23. 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 in relation to the applicant must be affirmed.

24. The Tribunal must also affirm the decision not to grant the second-named applicant a Subclass 187 visa as she does not meet the secondary visa criterion requiring her to be a member of the family unit of a person who holds a Subclass 187 visa, and there is no evidence that she meets the primary visa criteria for this subclass in her own right.

    DECISION

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

    Susan Trotter
    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.