Singh (Migration)

[2019] AATA 6737

Singh (Migration) [2019] AATA 6737 (12 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Inder Pal Singh
Mrs Inderpreet Kaur

CASE NUMBER:  1923584

HOME AFFAIRS REFERENCE(S):          BCC2017/3899881

MEMBER:Mark Bishop

DATE:12 December 2019

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 12 December 2019 at 12:18pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; rr 1.13, 5.19

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 23 October 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 first named applicant (the applicant) is seeking the visa in Direct Entry 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.187.233 of Schedule 2 to the Regulations because the nomination application by Central Cleaning Supplies (Aust) Trust was refused.

6. The applicants appeared before the Tribunal on 12 December 2019 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.

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 whether the applicant has an approved nominating sponsor and position in which to be engaged in employment.

   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. On 28 October 2019 in case number 1919672, an application by Central Cleaning Supplies (Aust) Trust as nominator, the Tribunal determined the nominator did not meet the requirements of r.5.19(4)(h)(ii) and affirmed the decision under review to refused the nomination.

13. The material matter for the Tribunal to determine is whether the applicant has an approved nominating sponsored and position. Given the decision of the Tribunal in Case number 1919672 the applicant does not have an approved nominating sponsor and position.

14. On 29 October 2019 the Tribunal wrote to the applicant and invited him to attend a hearing at 9am on 12 December 2019. The Tribunal requested the applicant provide “… any additional documents or information that you may wish to rely on during the hearing (emphasis added) by 5 December 2019”.

15. The applicant responded by advising the Tribunal he would attend the hearing at the scheduled time. The applicant did not provide any documentation or further information to the Tribunal.

16. Accordingly on 4 December 2019 the Tribunal again wrote to the applicant under s.359A/359(2) of the Act. The Tribunal provided adverse information to the applicant and particulars of that adverse information. The Tribunal advised the applicant that “…on 28 November 2019 the Tribunal affirmed the nomination application made by CENTRAL CLEANING SUPPLIES (AUST) TRUST (AAT case number1919672)”.

17. The Tribunal went onto further advise the applicant as follows:

    • This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a Subclass 187 visa.

    ·This is because one of the criteria contained within the Subclass 187, namely clause 187.233, requires that the nomination was approved by the Minister and that nomination has not subsequently been withdrawn.

    ·This information is relevant to the second named review applicant because clause 187.311, which prescribes the second applicant meets the requirement of this subclause if the applicant is a member of the family unit (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa and they made a combined application with the primary applicant.

    ·Accordingly, if the first named review applicant (Mr Inder Pal Singh) is not the holder of a Subclass 187 visa, then the secondary applicant (Mrs Inderpreet Kaur) will not be able to meet clause 187.311.

    ·You are invited to give comments on or respond to the above information in writing.

18. As outlined above the applicant appeared at the scheduled hearing on 12 December 2019. He provided comment to the Tribunal.

19. The Tribunal requested the applicant to provide evidence demonstrating that he was the subject of a nomination approved by the Minister under r.5.19 as required by cl.187.233(3) of Schedule 2 to the Migration Regulations. The applicant advised he could not provide such evidence.

20. There is no evidence before the Tribunal that the applicant is the subject of a nomination approved by the Minister under r.5.19 as required by cl.187.233(3) of Schedule 2 to the Migration Regulations.

21. Hence the applicant does not meet cl.187.233.

22. 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.

    CONCLUSION

23. The Tribunal has determined there is no approved nominated sponsor for the position with which the applicant can be engaged. Accordingly the applicant does not meet the requirements of cl.187.233.

    SECONDARY APPLICANT

24. In the following paragraphs

    ·    Inderpal SINGH is the applicant;

    ·    Inderpreet KAUR is the wife of the applicant and referred to as the secondary applicant;

25. The secondary applicant in this matter is Ms Inderpreet KAUR . She is a member of the family unit of the applicant in this matter.

26. As the secondary applicant 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 a visa, cl.187.311 is not satisfied.

27. Since the applicant is unable to meet Sub regulation 187.233 the secondary applicant is unable to meet criteria 187.311(a).

    CONCLUSION

28. Accordingly the Tribunal is not satisfied the secondary applicant satisfies cl.187.311

    DECISION

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

    Mark Bishop
    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.