Singh (Migration)

[2019] AATA 5276

Singh (Migration) [2019] AATA 5276 (20 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gursewak Singh

CASE NUMBER:  1724028

HOME AFFAIRS REFERENCE(S):          BCC2016/3887637

MEMBER:Wan Shum

DATE:20 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 November 2019 at 1:11pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Motor Mechanic – subject of an approved nomination – nomination application refused – postponement of decision declined – 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 Immigration and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) Subclass 187 (Regional Sponsored Migration Scheme) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 187 visa on 18 November 2016.

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. The related nomination was made by Matt Macdonald (the nominator) on 18 November 2016.

5. The nomination was refused on 4 July 2017.

6. As a consequence, the delegate refused to grant the visa finding that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. Both the nominator and the applicant have sought review of the refusals, and were represented in relation to the review by the same registered migration agent.

8. The applicant appeared before the Tribunal on 27 August 2019 by videoconference to give evidence and present arguments. The Tribunal also received oral evidence via telephone from Mr Matt MacDonald on behalf of the nominator.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the nomination has been approved. 

11. This requirement is set out in clause 187.233 which appears 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.

12. 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.

13. On the visa application, the applicant provided details of a related nomination, which is the nomination made by the nominator for the position of Motor Mechanic. Under the section ENS/RSMS declarations, the applicant responded ‘Yes’ to the sentence: “[h]ave declared that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection”.

14. On 23 October 2019, the Tribunal affirmed the delegate’s decision not to approve the nomination.

15. The Tribunal wrote to the applicant, pursuant to s.359A of the Act, regarding this information on 25 October 2019. A response was due on 8 November 2019. The applicant’s representative provided a response and noted that the applicant is nearing completion of his two years anniversary of working with the nominator on 8 January 2020. A request was made for the Tribunal to postpone making its decision until after that time so that the applicant will be eligible to apply for the Subclass 482 visa to continue employment with the nominator. 

16. On 15 November 2019 the Tribunal wrote to the applicant to inform him that it will not postpone making a decision. The Tribunal explained that it is not clear how a two year period of employment is relevant to a Subclass 482 visa application and that it does not appear to be relevant to the visa application the subject of this review.  The Tribunal also took into account the applicant’s bridging visa status.

17. In the circumstances, as the nomination has not been approved, cl.187.233(3) is not met. Therefore, cl.187.233 is not satisfied.

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.

    Wan Shum
    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.