Singh (Migration)

[2020] AATA 2276

Singh (Migration) [2020] AATA 2276 (29 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr JASMER SINGH
Mrs ANKITA URVASHI
Master VARDAN RANA

CASE NUMBER:  1813320

HOME AFFAIRS REFERENCE(S):          BCC2017/2641710

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 6:06pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related position nomination refused – no jurisdiction to review refusal – nominating company deregistered – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cll 186.233(3), 186.311

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 19 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 25 July 2017. The first-named applicant, (the applicant) is a 35-year-old citizen of India. The second-named applicant is a 31-year-old citizen of India and is identified in the visa application as being the wife of the applicant. The third-named applicant is a 5-year-old citizen of India and is identified in the visa application as being the son 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 Office Manager for OM Infosys Pty Ltd (the nominator), the applicant for approval of a nomination in relation to the nominated position.

5. The second-named and third-named applicants applied on the basis of each being a member of the family unit of the applicant.

6. 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 and third-named applicants could not be granted Subclass 187 visas, as they did not meet the secondary visa criterion (cl.187.311) requiring them to each be a member of the family unit of a person who met the primary visa criteria.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 8 May 2018 and provided the Tribunal with a copy of the delegate’s decision.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

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

12. 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.

13. 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 Office Manager was refused by the Department on 8 March 2018.

14. 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, 7 April 2020, this Tribunal (differently constituted) found that it had no jurisdiction to consider that application because the nominator was deregistered (on 28 July 2019) 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 and third-named applicants.

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

15. The applicant told the Tribunal that he understood the information and why it was relevant. However, he told the Tribunal that he had worked for the nominator for some time and done what he was required to do. The Tribunal discussed with the applicant that even if he might meet some of the other criteria for the visa, additionally the criterion that there is an approved nomination must be met.

16. The Tribunal acknowledges the applicant did at one stage undertake work for the nominator as he advised. However, as discussed with the applicant at the hearing, the issue before the Tribunal relates to whether the associated nomination has been approved and, as also discussed with the applicant at the hearing, that 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.

17. 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 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.

18. 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.

19. The Tribunal must also affirm the decision not to grant the second-named and third-named applicants Subclass 187 visas as they do not meet the secondary visa criterion requiring them to each be a member of the family unit of a person who holds a Subclass 187 visa, and there is no evidence that they meet the primary visa criteria for this subclass in their own right.

    DECISION

20. 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

    (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.