Singh (Migration)

[2019] AATA 5055

Singh (Migration) [2019] AATA 5055 (4 November 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Paramjit Singh

CASE NUMBER:  1803210

HOME AFFAIRS REFERENCE(S):           BCC2016/2414048

MEMBER:  Mark Bishop

DATE:  4 November 2019

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 04 November 2019 at 3:33pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager – subject of an approved nomination – 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 20 July 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 Retail Manager ANZSCO 142111.

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 correlating nomination was not approved.

6. The applicant appeared before the Tribunal on 4 November to give evidence and present arguments.

7. Relevant facts and background to this review application are set out in Case number 1800727.

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 lack of approval of a correlating nomination in Case number 1800727.

   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

Case Number 1803210  Page 2 of 4

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.

1. At the conclusion of the hearing in Case number 1800727 the Tribunal gave down an oral decision to affirm the decision of the delegate. The applicant in this review application was in the hearing room at the time of giving down of that decision. The applicant advised he understood the decision in Case number 1800727.

2. The Tribunal provided adverse information to the applicant in this matter in conformity with s.359AA of the Act. The Tribunal asked the applicant if he wished additional time to consider that information. The applicant advised he did not seek additional time.

3. On 4 November 2019 the Tribunal did not approve the nomination in respect of the applicant under r.5.19 of the Regulations made by the employer HEAA Pty Ltd. The relevant case is Case number 1800727. Hence the applicant does not meet cl.187.233 (3) of Schedule 2 to the Regulations.

4. Therefore, cl.187.233 is not met.
   CONCLUDING PARAGRAPH

5. 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

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

   Mark Bishop
   Member

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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.

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