Singh (Migration)

[2020] AATA 337

Singh (Migration) [2020] AATA 337 (2 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manjinder Singh

CASE NUMBER:  1812507

HOME AFFAIRS REFERENCE(S):          BCC2016/2781619

MEMBER:De-Anne Kelly

DATE:2 January 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 02 January 2020 at 10:09am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Motor Mechanic – no jurisdiction – nominator deregistered – no approved nomination – did not respond to Tribunal’s correspondence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), r 1.13, 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 22 August 2016. 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 Direct Entry stream, to work in the nominated position of Motor Mechanic.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) and cl.187.233 of Schedule 2 to the Regulations because a delegate of the Minister on 14 March 2018, refused the employer nomination by A&K Butter Automotive Services Pty Ltd being the application referred to in cl.187.233(1).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant Mr Manjinder Singh, meets cl.187.233(3) and cl.187.233.

   Nomination of a position

8. 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.

9. 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.

10. After the delegate of the Minister refused the employer nomination, the nominator lodged a review application on the 2 April 2018, with the Tribunal. The Tribunal found they had no jurisdiction in the matter because the company A & K Butter Automotive Services Pty Ltd was de-registered with the Australian Securities and Investment Commission (ASIC) on 9 January 2019. The Tribunal also found that the Australian Business Number ABN of the nominator had been cancelled from the 4 February 2019 and the legal entity ceased to exist. As there was no legal entity, it followed that there was no longer a valid application to review. Therefore, the employer nomination was not approved.

11. On the 6 December 2019, the Tribunal, by email and through the appointed migration agent, wrote to the applicant under s.359A of the Migration Act inviting him to comment on or respond to the information as follows.

    ·On 22 August 2016, you applied for a Regional Employer Nomination (Permanent)

    visa. On your application form, under the heading “Nomination Details”, you
    referred to an Employer Nomination, lodged by A & K Butter Automotive Services
    Pty Ltd.

    ·On 14 March 2018, the Employer Nomination lodged by A & K Butter Automotive

    Services Pty Ltd was refused by a delegate of the Minister for Home Affairs. An
    application for review of this nomination refusal was lodged with the Tribunal.

    ·On 12 March 2019, the Tribunal found it had no jurisdiction to review the

    application for review lodged by A & K Butter Automotive Services Pty Ltd.
    This information is relevant to the review because one of the criteria that must be met
    for grant of an Regional Employer Nomination (Permanent) visa, cl.187.233(3) of
    Schedule 2 to the Migration Regulations 1994, requires that the nomination referred to
    for meeting the criteria in cl.187.233(1) must be approved.
    Since the application for review in regards to the refused Employer Nomination has
    resulted in a finding that A & K Butter Automotive Services Pty Ltd had no jurisdiction
    in relation to their application for review, the decision made by the delegate of the
    Minister for Home Affairs stands. Therefore, the Employer Nomination is not approved.
    If we rely on this information in making our decision, we may find that the nomination
    was not approved and you will be unable to meet cl.187.233(3). If that criterion is not
    met, the visa cannot be granted and we must affirm the decision under review to refuse to grant the visa.

12. The applicant was advised that a response was required by the 20 December 2019 or an extension of time could be requested but the request must be made before this date.

13. To date there has been no request for an extension of time and no response to the invitation to comment from either the applicant or their appointed migration agent. The Tribunal has checked the telephone log to determine if there have been any telephone calls for an extension or similar request from the applicant or their appointed migration agent but to date there has been no communication. The Tribunal considers it is reasonable to make a decision on this case under s.359C of the Act which states as follows;

    359C Failure to give information, comments or response in response to written invitation.

    (2) If the applicant:

    (a) is invited under section 359A to comment on or respond to information; and

    (b) does not give the comments or the response before the time for giving them has passed;

    The Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

14. Since the Tribunal has found there is no legal entity to act as the applicant in a review and therefore the Tribunal has no jurisdiction to conduct a review of the employer nomination; there is no approved nomination to satisfy cl 187.233(3) and the visa applicant therefore does not meet cl 187.233(3).

15. Therefore, cl.187.233 is not met.

16. 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

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

    De-Anne Kelly
    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.