Singh (Migration)

[2019] AATA 4716

Singh (Migration) [2019] AATA 4716 (9 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karanpreet Singh

CASE NUMBER:  1822327

HOME AFFAIRS REFERENCE(S):           BCC2017/1167102

MEMBER:Terrence Baxter

DATE:9 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 09 July 2019 at 9:18am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – employer’s nomination application refused – no response to Tribunal’s communication – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C(2), 360(3), 363(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASE

Hasran v MIAC [2010] FCAFC 40

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 27 March 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 of Marketing Specialist.

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 lodged by M3 Engineering Systems Pty Ltd (the nominator) had not been approved.

6. On 17 December 2018, the Tribunal wrote to the applicant in the following terms :

   I am writing in relation to the application for review made by you in respect of a decision to refuse to grant an Employer Nomination (Permanent) (Class RN) 187 (Regional Sponsored Migration Scheme) visa.

   It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.

   Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 187 visa must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding member to determine.

   If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide us with evidence about this. Alternatively, if your circumstances have changed and you no longer wish to continue with this application for review, please return a completed MR10- Withdrawal of Application form.

7.    No response to the letter of 17 December 2018 was received by the Tribunal.

1. On 12 June 2019, the Tribunal wrote to the applicant pursuant to s 359A of the Act inviting him to comment or respond to information which the Tribunal considered would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows :

   •  On 27 March  2017, you lodged an application for a  Regional Nomination
   (Permanent) (Class RN) visas.

   •  On 7 June 2018, the nomination lodged by M3 Engineering Systems
   Pty Ltd, being the nomination referred to in cl.187.233(1) for the purposes of your visa  was refused by a delegate of the Minister for Home Affairs.

   •  No review of the nomination refusal was sought.

   Under Migration Law, a visa cannot be granted unless the applicant meets the relevant legal requirements that are specified in the Act and the Regulations. The legal requirements in cl.187.233 in Schedule 2 to the Regulations are attached.

   Based on the information before it, and subject to your comments or response, the Tribunal may find that you do not have an approved nomination, and therefore are unable to meet the requirements of cl.187.233(3).

2. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The applicant failed to comment on or respond to the invitation within the prescribed time for commenting on or responding to the invitation. No comment on or response to that invitation has ever been received by the Tribunal.

3. Where a review applicant is invited to comment on or respond to information in accordance with s.359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to s.359C(2) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal in accordance with s.360(3) of the Act. Of note, the effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

4. The Tribunal has considered whether it should take further action to obtain the applicant’s views on the information referred to in paragraph12 above. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicant has been aware since 17 July 2018 of the reasons for the visa application being refused and also that the implications of not providing the information requested in the invitation from the Tribunal of 12 June 2019 were set out in that correspondence. The Tribunal also notes that the applicant has chosen not to respond to either of the Tribunal’s letters of 17 December 2018 or 12 June 2019.

5. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicant’s views on the information referred to in the notification of 12 June 2019 or to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant criteria under cl.187.233 of Schedule 2 of the Regulations.

6. Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations.

   Nomination of a position

9. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

10. 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.

11. The applicant lodged his application for review on 2 August 2018. On 6 August 2018 the Tribunal wrote to the applicant advising him that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. Further, as set out in paragraph 8 above, the Tribunal wrote to the applicant on 12 June 2019 inviting him to comment on or respond to the information regarding the withdrawal of the nomination application. No material has been supplied to the Tribunal in response to these communications.

12. The Tribunal notes that the application for nomination for the position of Marketing Specialist has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application.

13. Therefore, cl.187.233 is not met.

14. 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

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

    Terrence Baxter
    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.