Singh (Migration)

[2020] AATA 758

Singh (Migration) [2020] AATA 758 (23 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Singh

CASE NUMBER:  1922093

HOME AFFAIRS REFERENCE(S):          BCC2018/1012602

MEMBER:Karen Synon

DATE:23 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 23 March 2020 at 1:55pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Mechanical Engineering Technician – subject of an approved nomination – nomination application withdrawn – position no longer available – decision under review affirmed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 2 March 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Mechanical Engineering Technician’.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination lodged by ‘Queensland Cypress Supplied Pty Ltd’ was withdrawn on 19 June 2019.

6. The applicant applied for review of the primary decision on 9 August 2019 and provided a copy of the department’s decision.

7. The applicant appeared before the Tribunal on 12 March 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 cl.187.223.

   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 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:

    ·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.

12. Relevantly on 19 August 2019 the applicant provided the following written submission:

    It’s with great sadness am writing to you with regards to my misfortunate unexpected current circumstance.  After finishing my Advance Diploma in Mechanical Engineering at Challenger Tafe Fremantle in 2017, a very exciting and rare opportunity for a young graduate like me came up to join Queensland Cypress Supplies Pty Ltd as a Mechanical Engineering Technician.  The chance to go straight after my studies in the workforce where I would be trained by qualified and experienced staff was something I was looking forward to, which even the hassle and hurdles of relocating from Perth WA to Mungallala QLD did not deter my enthusiasm.

    At that time my student visa was about to run out on March 2018, hence along with the great opportunity to gather first hand industry experience, the Queensland Cypress Supplies Pty Ltd was keen to sponsor me on a 187 RSMS visa which would have kept me in the country with a full time working rights to meet the job demands.  It all seems set for a very bright and fruitful few years ahead experience wise and educationally, bearing in mind I still would have been able to carry on with my studies on a part time basis, which was and is my ultimate motto of being in Australia at the very first place.

    On 19 June 2019, I received an email from Queensland Cypress Supplies Pty Ltd informing me that my Nomination has been withdrawn for unclear reasons  After a long waiting time, a costly application process and all the difficulties along the way, it’s a pity it have turned to be this way with all the effort and time gone wasted.  After the unexpected and the unpleasing turnaround of situation which was beyond my control, I only wish I would have rather keep focusing on my studies full time instead.  I wholeheartedly ask the Tribunal Member the opportunity to apply for a student visa to pursue my studies.

13. During the hearing the Tribunal explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to the applicant.  As recorded in the primary decision, a copy of which was provided to the Tribunal, this position nomination is no longer available to him as the nomination lodged by ‘Queensland Cypress Supplies Pty Ltd’ was withdrawn on 19 June 2019.

14. Invited to make any submissions the applicant said he did not have anything else to add as he had already provided his written submission.  He said he is currently working as a mechanic in Newcastle, New South Wales and while there may be some mechanics shops which might be keen to sponsor him, no nominations have been lodged.  The applicant said he might also do a diploma or bachelor qualification in automotive.

15. Asked if he agreed that the nomination for the occupation of Mechanical Engineering Technician with ‘Queensland Cypress Supplies Pty Ltd’ was no longer available to him, the applicant said yes.  The applicant said he understood that the Tribunal had no option but to affirm the decision.

16. While the Tribunal notes the applicant’s submission about the circumstances that led to his sponsor withdrawing the nomination and accepts he is sad and disappointed that this happened a year after he had been working for the sponsor, based on the information before it in the primary decision and the applicant’s evidence the Tribunal has no alternative but to find that the applicant is not the subject of an approved nomination.

17. Therefore, cl.187.233 is not met.

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 must be affirmed.

    DECISION

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

    Karen Synon
    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.