Singh (Migration)

[2019] AATA 4708

Singh (Migration) [2019] AATA 4708 (4 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gurmeet Singh
Miss Dishmeet Kaur
Mrs Simarjit Kaur

CASE NUMBER:  1901975

HOME AFFAIRS REFERENCE(S):           BCC2017/852382

MEMBER:Warren Stooke AM

DATE:4 July 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 04 July 2019 at 3:11pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – employer’s nomination application not assessed – applicant not subject to approved standard business sponsor – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cls 187.233, 187.311

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 3 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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Cook – ANZSCO 351411.

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 applicant was not subject to an approved standard business sponsor.

6. The applicants appeared before the Tribunal on 25 June 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. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 9 January 2019 and that he understood the content of the decision. In this regard, the applicant stated that if the nomination was approved then the application would be approved but if refused then the application would be refused under 187.

8. The applicant confirmed that he had provided a copy of the delegate’s decision to the Tribunal with his application.

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 applicant has an approved standard business sponsor.

    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. 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. The applicant gave evidence that he arrived in Australia in 2008 and that he had completed a Hospitality Diploma in Commercial Cookery and an Advanced Diploma in Commercial Management.

14. The applicant stated that he has a wife and daughter with him in Australia and that his daughter was born, in Australia, in June 2014, who is currently attending kinder.

15. The applicant gave evidence that his application was refused and that he is not currently working with the company subject of the nomination, which the Tribunal notes, was the ‘Green Olive Pty Ltd’.

16. The applicant stated that he is currently working at “Finders Keepers” for Paul Moran, which is a sister business of Four Corners.

17. The applicant advised the Tribunal that he had taken legal advice to the effect that – “if the nomination was approved then the nomination will be approved.”

18. Further, the applicant confirmed to the Tribunal that he has no current sponsor.

19. The Tribunal asked the applicant if he wanted to make any other comment and he declined the invitation.

20. The evidence provided by the applicant confirmed to the Tribunal that the applicant does not have an approved standard business sponsor following the refusal by the Department of the nomination lodged by ‘The Green Olive Pty Ltd’. In this regard, there is no evidence before the Tribunal that the applicant has an approved standard business sponsorship with his current employer. As such, the Tribunal is satisfied that the applicant does not meet the requirements of cl.187.233.

21. Therefore, cl.187.233 is not met.

22. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

23. Since the correlating nomination did not seek to meet the requirements of and was not assessed under subregulation 5.19(3), the Tribunal is satisfied that the applicant has not met the requirements of cl.187.223.

24. As the primary applicant does not meet the requirements of cl.187.223, it follows that the secondary applicants are not members of a family unit that has met the requisite criteria. As such, the Tribunal is satisfied that the secondary applicants do not satisfy cl.187.311.

25. Accordingly, cl.187.311 is not met.

    DECISION

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

    Warren Stooke AM
    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.