Singh (Migration)

[2019] AATA 3391

Singh (Migration) [2019] AATA 3391 (28 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jasbir Singh
Mrs Baljeet Kaur
Master Ekamjot Singh Guron

CASE NUMBER:  1812320

HOME AFFAIRS REFERENCE(S):          BCC2016/2695804

MEMBER:Stavros Georgiadis

DATE:28 June 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 28 June 2019 at 4:25pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – nomination refused – no evidence provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2 cl 187.233, r 5.19

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 15 August 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Chef (ANZSCO 351311) with Harsinco Pty Ltd.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no evidence that the nomination appointment for the position had been approved.

6. The first and second named applicants appeared before the Tribunal on 28 June 2019 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

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 whether the applicants meet the criteria for the grant of Subclass 187 visas which are set out in Schedule 2 to the Migration Regulations 1994.

   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 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.

12. The Tribunal notes that the required declaration has been made in relation to the position nominated by the employer sponsor. The Tribunal is satisfied on the documentary and oral evidence before it, that the position to which the application relates is the position of Chef (ANZSCO 351311): (cl.187.233(1)).

13. The Tribunal is satisfied, on the documentary and oral evidence before it, that the person who will employ the applicant is the nominator in the application for approval, Harsinco Pty Ltd. The applicant therefore, meets cl.187.233(2).

14. On 19 June 2019 the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19 in the related case-file number 1809215 for the reasons set out in the Decision Record of that date refusing the nomination.

15. In accordance with the procedure under s.359AA of the Act the Tribunal put to the applicants at the hearing information that, subject to their comments, would be the reason, or part of the reason, for affirming the decision to refuse the applicants the 187 visas. The Tribunal outlined that they would be asked to comment on, or respond to adverse information and would be entitled to seek additional time to comment on, or  respond to the information the Tribunal was about to submit to them.

16. The Tribunal put to the applicants that on 19 June 2019 the Tribunal affirmed the decision refusing approval of the nomination of the position of Chef to which the application relates made by the nominating employer in respect of the applicant. The Tribunal also explained to the applicants that this information is relevant to this review because without evidence of approval of the relevant nomination for the position, the applicants could not satisfy the requirements of clause 187.233(3) of the Regulations and, in the case of the second and third named applicants, the relevant secondary criteria for the grant of the Class RN visas.

17. The Tribunal submitted to the applicants that without an approved nomination, the visa applicants would not be able to meet essential criteria to satisfy cl.187.233 for the grant of the visas.

18. The applicant responded immediately and confirmed that he understands the basis on which a decision would be made. He responded, when asked, that he was aware of the decision made to refuse the nomination as his employer and representative had explained the reasons for that nomination refusal.  The applicant said he has worked in Australia for 10 years and works hard in his job of Chef for his employer.  The first and second named applicants confirmed to the Tribunal, when asked, that they understand and accept that in such circumstances, it is not open for their visa applications to be successful as an approved nomination for the position is one of the essential criteria (cl.187.233(3)).

19. Having considered the available evidence before it, the Tribunal is satisfied that the position of Chef (ANZSCO 351311) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.233(3) for the Direct Entry stream. The Tribunal finds that the nomination of the position to which the application relates is not approved.  

20. Therefore, cl.187.233 is not met.

21. 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 in respect of all applicants, (spouse and son respectively) of the primary applicant, as members of the same family unit: cl.187.311.

    DECISION

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

    Stavros Georgiadis
    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.