Singh (Migration)

[2019] AATA 3400

Singh (Migration) [2019] AATA 3400 (17 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Davinder Singh

CASE NUMBER:  1837170

HOME AFFAIRS REFERENCE(S):          BCC2017/3452850

MEMBER:R. Skaros

DATE:17 July 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 17 July 2019 at 4:56pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – subject of an approved nomination – nomination application refused – review application withdrawn – conduct of the employer – decision under review affirmed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 21 September 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position with DCSM Pty Ltd ATF The Trustee for the Toll Family Trust.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination of the position lodged by DCSM Pty Ltd ATF The Trustee for the Toll Family Trust in relation to the applicant was not approved.

6. On review, the applicant provided copies of his qualifications, English language proficiency, employment references and personal documents.

7. On 25 June 2019, the applicant wrote to the Tribunal to inform it that his representative is no longer acting on his behalf. The representative also wrote to the Tribunal confirming that he was no longer representing the applicant. The representative also advised that the nominator had withdrawn the application for review of the Department’s decision to refuse the nomination in relation to the applicant.

8. The applicant appeared before the Tribunal on 9 July 2019 to give evidence and present arguments. At the hearing the Tribunal received further documents from the applicant, including details of complaints made against the nominator regarding underpayment and non-compliance with national employment standards.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

11. 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. Where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position. In addition, this criterion also requires that the nomination has been approved and has not been subsequently withdrawn.

12. The applicant applied for the visa on the basis of a nomination of a position made by DCSM Pty Ltd ATF The Trustee for the Toll Family Trust (the associated nomination). On 31 August 2018 the associated nomination was refused by the Department. Consequently, the applicant’s visa application was also refused.

13. The applicant applied for review of the decision to refuse the visa. The nominator also applied for review of the decision refusing the associated nomination, however, that application for review was subsequently withdrawn by the nominator.

14. At the hearing, the Tribunal discussed with the applicant the requirement in cl.187.233 and the evidence before it which suggests that he does not meet that requirement. The applicant stated that he worked for the employer, who was located in a regional area of Australia. He stated that after the nomination was refused his employer advised him to find another sponsor because they had not been paying taxes and had some issues.

15. In accordance with the procedure in s.359AA, the Tribunal informed the applicant that Departmental records indicate that the nomination, against which he made the required declaration in his visa application, was refused by the Department on 31 August 2018 and evidence on the Tribunal’s records indicate that the application for review of the decision to refuse the associated nomination was withdrawn from the Tribunal. The Tribunal explained to the applicant the relevance of the information and informed him that if it relied on the information it would go on to find that the Department’s decision refusing the nomination in relation to him would stand. The Tribunal explained to the applicant that in the circumstances he would not be able to meet the requirements in cl.187.233(3) and the decision under review would be affirmed.

16. The applicant chose to respond to the information straight away and stated that the nominator had withdrawn the nomination because he (the applicant) made a compliant about his work entitlements. The applicant provided details of the complaint against the nominator, which he indicated had been forwarded to the Fair Work Ombudsman. He stated that the nominator had denied any non-compliance and he has been advised to get legal advice about pursuing the case against the employer.

17. The Tribunal acknowledged the applicant’s evidence and explained to him that it had no power to consider the conduct of the employer or his circumstances. The Tribunal explained that the issue before it relates to whether the nomination, against which he made the relevant declaration in his application, had been approved. The Tribunal again noted that the evidence before it is that the nomination has been refused. In response to the applicant’s query about the possibility of obtaining another nomination, the Tribunal explained to the applicant that another nomination would not assist him in this review because only the nomination of the position made at the time of the visa application, against which he made the relevant declaration in the visa application form, could be relied on to meet the requirements in cl.187.233.

18. The Tribunal has had regard to the applicant’s evidence, however, as explained to the applicant at the hearing, the Tribunal has no discretion in these matters and must make its decision in accordance with the relevant legislative provision. The evidence before the Tribunal indicates that the nomination for the position lodged by the nominator, about which the visa applicant made the required declaration in the visa application, has been refused. In the circumstances, the applicant does not meet the requirements in cl.187.233(3).  Therefore, cl.187.233 is not met.

19. 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

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

    R. Skaros
    Senior 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.