Singh (Migration)

[2020] AATA 2404

Singh (Migration) [2020] AATA 2404 (1 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ranjit Singh

CASE NUMBER:  1910503

HOME AFFAIRS REFERENCE(S):          BCC2017/1769874

MEMBER:Phoebe Dunn

DATE:1 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 1 April 2020 at 4:21pm

CATCHWORDS

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Scheme – Direct Entry stream – position of Motor Mechanic (General) – no approved nomination – nomination application withdrawn – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 187.223; r 1.13

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 18 May 2017. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Motor Mechanic (General) (ANZSCO 321211).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(4) of Schedule 2 to the Regulations because the delegate found that the related nomination application, being the application referenced in cl.187.233(1) of the Subclass 187 visa application, had been withdrawn on 6 March 2019, and as such the applicant did not meet the requirements of cl.187.233(4). The Tribunal notes, however, that the issue on review before this Tribunal is whether there is an approved nomination as required under cl.187.233(3). The Tribunal is satisfied that it is clear that the basis for the refusal of the visa application is that there is no approved nomination as required under cl.187.233(3).

6. The applicant appeared before the Tribunal on 10 March 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. At the hearing, the Tribunal explained that the issue on review is whether there is an approved nomination and that notwithstanding the decision record for the refusal of the Subclass 187 visa application refers to cl.187.233(4), the Tribunal was satisfied that it is clear that cl.187.233(3) is the basis for the refusal.

10. At the hearing, the Tribunal put information to the applicant under s.359AA of the Act that would be the reason, or part of the reason, for affirming the decision that is under review.  The Tribunal advised the applicant that the Tribunal was raising the information with the applicant, not because the Tribunal has already made up its mind in relation to the information, but to give the applicant an opportunity to comment on or respond to the information in order to help the Tribunal to make up its mind.  The Tribunal explained the relevance of the information and the consequences of it.

11. The particulars of the information are that the application for approval of the nominated position made by Specialist Auto Group Pty Ltd (the nominator) in respect of the applicant’s Subclass 187 visa application was withdrawn on 6 March 2019, and as such there was no approved nomination.  Further, a search of Departmental records indicated that the applicant is not currently the subject of a nomination by an approved standard business sponsor.

12. The Tribunal explained that this information is relevant to the review because it indicates that there is not an approved nomination on foot in respect of the applicant, and that it is a requirement for the grant of a Subclass 187 visa that the position nominated in the visa application is the subject of an approved nomination. The Tribunal further explained that if the Tribunal relied on this information in making its decision, the Tribunal may find that the position specified in the visa application is not the subject of an approved nomination, which is a requirement of cl.187.233(3) of Schedule 2 to the Regulations, and that this would mean that the applicant does not satisfy a requirement for the grant of the visa, and that the Tribunal must affirm the decision that is under review.

13. The Tribunal explained that this would be the reason, or part of the reason, for affirming the delegate’s decision to refuse the applicant’s visa application.  The Tribunal invited the applicant to comment on or respond to the information, or to seek additional time to comment on or respond to the information.  The applicant did not seek additional time to comment or respond.

14. In response, the applicant stated that he understood there was no approved nomination because it had been withdrawn and this was the reason his Subclass 187 visa application was refused.  The applicant stated that he first came to Australia to study to become a mechanic and when he had graduated was happy to move to a regional area to work.  He stated that the nominator was happy to sponsor him for a Subclass 187 visa under the Direct Entry stream and had lodged the nomination application. The applicant stated that at this time, the Department of Immigration was taking six months to process applications, but that in his case the Department delayed making a decision for over two years, and repeatedly asked his employer for more information every few months. The applicant stated that his employer became frustrated and after two years decided to withdraw the nomination application because they did not have the time to continue responding to requests from the Department. The applicant stated that no one wants to work in regional Australia and that he has spoken to the nominator and they were reconsidering their position in relation to sponsoring him.  He stated that he believed the Department deliberately delayed making a decision and that this had impacted on him negatively as it resulted in the nominator withdrawing the nomination.

15. The Tribunal noted that the issue before the Tribunal on review was whether the nomination application referenced in his visa application had been approved and that a new nomination application would not enable the applicant to meet this criteria.  The Tribunal noted that it was open to the applicant to make a complaint to the Commonwealth Ombudsman about the issues raised by the applicant before the Tribunal. The Tribunal stated that it would not make a decision on the review application before 16 March 2020 and that the applicant could lodge any further information with the Tribunal on or before this date, should he wish to do so. As at the date of this decision, the Tribunal has received no further information from the applicant.

    Nomination of a position

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

17. 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 of the Regulations); 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.

18. In this case, the nomination lodged by the nominator, being the nomination referred to in cl.187.233(1) in respect of the applicant, was withdrawn by the nominator on 6 March 2019.   As such, there is no approved nomination as required under cl.187.233(3).  Accordingly, cl.187.233(3) is not met.

19. Therefore, cl.187.233 is not met.

20. 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

21. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Phoebe Dunn
    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.