Singh (Migration)

[2020] AATA 754

Singh (Migration) [2020] AATA 754 (17 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harjeet Singh
Mrs Manpreet Kaur

CASE NUMBER:  1910708

HOME AFFAIRS REFERENCE(S):          BCC2018/2048298

MEMBER:Phoebe Dunn

DATE:17 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 17 March 2020 at 9:08am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Customer Service Manager – subject of an approved nomination ­­– nomination application withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.223

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 11 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 the Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager (ANZSCO 149212).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223(2) of Schedule 2 to the Regulations because the related nomination application by IBT Business Solutions Pty Ltd, being the nomination referred to in cl.187.223(1), was withdrawn on 4 March 2019, and as such there was no approved nomination.

6. The applicants appeared before the Tribunal on 5 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. The applicants were represented in relation to the review by their registered migration agent, Mr Maidan Gaindhar.

8. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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 IBT Business Solutions Pty Ltd in respect of the applicant’s Subclass 187 visa application was withdrawn on 4 March 2019. 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 suggests that there is not an approved nomination on foot in respect of the applicant on review before the Tribunal, 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.187.223(2) 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 further explained that this would be the reason, or part of the reason, for affirming the decision in relation to the second named applicant, as they would not be members of the family unit of a person who holds a Subclass 187 visa application, and as such do not meet the requirements of cl.187.311 of Schedule 2 to the Regulations. The Tribunal invited the applicants to comment on or respond to the information, or to seek additional time to comment on or respond to the information. The applicants did not seek additional time to comment or respond.

14. In response, the applicant advised that he was working for the nominator at the time the nomination was withdrawn, and the nominator did not tell him it had been withdrawn.  The applicant stated that he first became aware of the issue when he received the delegate’s decision regarding his visa application, and when he spoke to his employer he advised that he was having some business issues and could not help him anymore. The applicant stated that since that time he has been trying to find another sponsor and is currently working as a motor mechanic.  The applicant stated that he has been in Australia for 11 years and wants to find another sponsor.

15. The Tribunal reiterated that the issue before it was whether the position specified in the applicant’s Subclass 187 visa application is the subject of an approved nomination identifying the applicant. The Tribunal stated that it did not have discretion on this issue, and the withdrawal of the nomination, being the nomination referred to in cl.187.223(1) of the applicant’s Subclass 187 visa application meant that the applicant could not satisfy cl.187.223(2) of the Regulations as there was no approved nomination. The applicant agreed that he is not currently the subject of an approved nomination.

    Nomination of a position

16. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

17. In addition, this criterion also requires that:

    ·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 located in regional Australia (as defined in r.5.19);

    ·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.187.223(1) in respect of the applicant, was withdrawn on 4 March 2019.  As such, there is no approved nomination as required under cl.187.223(2).  Accordingly, cl.187.223(2) is not met.

19. Therefore, cl.187.223 is not met.

20. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

21. The only basis of the application of the second named applicant is that they are a member of the family unit of the person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.187.311(a).  As the first named applicant does not meet the primary criteria and has not been granted a Subclass 187 visa, the decision to refuse the application of the second named applicants must also be affirmed because they do not satisfy cl.187.311.

    DECISION

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

    Phoebe Dunn
    Member

    
    

    ATTACHMENT A

    187.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; and

    (c)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 Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position to which the application relates is located in regional Australia.

    (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.