Singh (Migration)

[2020] AATA 2433

Singh (Migration) [2020] AATA 2433 (2 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lakhwinder Singh
Mrs Harkirat Kaur

CASE NUMBER:  1814600

HOME AFFAIRS REFERENCE(S):          BCC2016/2975190

MEMBER:Stavros Georgiadis

DATE:2 April 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 2 April 2020 at 10:56am

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

CASES

R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Pty Ltd (1949) 78 CLR
VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280

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 17 May 2018. 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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Chef (ANZSCO 351311).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations as the nomination for the position was not approved at the time of the delegate’s decision - 187.233(3). The delegate considered that the second named visa applicant was not a member of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and therefore did not meet cl.187.311.

6. The applicants appeared before the Tribunal by teleconference on 30 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Anjali Patel who is the sole Director of the nominating employer, Harsinco Pty Ltd in the related matter 1810204 refusing the nomination. The related matters were heard together in a combined hearing. The employer’s Restaurant Manager, Mr Prakesh Patel, was not required to give evidence.

7. 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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The applicants were represented in relation to the review by their registered migration agent.

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 visa applicants meet the criteria for grant of the (Class RN) visas.

    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 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.

12. 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.

13. The Tribunal notes that the required declaration has been made in relation to the position nominated by the employer sponsor. The Tribunal is satisfied, on the documentary and oral evidence before it, that the person who will employ the applicant is the nominator in the application for approval, Harsinco Pty Ltd. Thus, the first named applicant meets cl.187.233(1)).

14. The oral evidence before the Tribunal from the applicant and the nominating employer is that the position has not been subsequently withdrawn and is still available to the applicant: (cl.187.233(4) and cl.187.223(5)). 

15. On 30 March 2020 the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19 in the related AAT case-file number 1810204 for the reasons set out in the Decision Record for that case dated 30 March 2020, refusing the nomination.

16. At the hearing the Tribunal put to the applicants, in accordance with the procedure under s.359AA of the Act, that without an approved nomination in respect of the applicant, they would not meet necessary criteria to satisfy cl.187.233 (specifically cl.187.233(3)) for the grant of the visas and that the application for the visas would, on that basis, be unsuccessful. The Tribunal invited the applicants to comment on, or respond to, the information that in such a decision refusing the nomination, this would be the reason or part of the reason, for affirming the decision that is under review.  The Tribunal also advised the applicants that they could seek additional time to comment on, or respond to, the information and that the Tribunal would consider adjourning the review if it considered additional time to comment on, or respond was reasonably required. 

17. The applicants responded forthwith indicating when asked, that they understand and accept that in circumstances where the nomination for the position is not approved, it would not be open for their visa applications to be successful given approval of the nomination is an essential requirement for the grant of the visas.

18. As aforementioned, on 30 March 2020 the Tribunal affirmed the decision to refuse the nomination of the position. The Tribunal has not returned the matter for any further evidence or submissions as in these circumstances, and in view of the authority in the case of VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280 (paragraphs 51-58) it would be ‘futile’ as the visas cannot be granted in the absence of an approved nomination and there is no practical injustice as “no useful result could ensue”[1].  The Tribunal is satisfied that there is no practical injustice in not returning the matter back to the Tribunal following its decision refusing the nomination, and accepts the applicant’s submissions that accord with this point when invited, made at the hearing.

    [1] See R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Pty Ltd (1949) 78 CLR

19. Having considered the available evidence before it, the Tribunal is satisfied that the position of Chef (ANZSCO 351311) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.233(3). The Tribunal finds that the nomination of the position to which the application relates is not approved.  

20. Therefore, cl.187.233 is not met.

21. 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.

22. The Tribunal finds that the second named visa applicant in the application (claimed as the applicant’s spouse) is not a member of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and therefore, does not satisfy cl.187.311.

    DECISION

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

    Stavros Georgiadis
    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.