Singh (Migration)

[2019] AATA 3829

Singh (Migration) [2019] AATA 3829 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurvinder Singh Singh

CASE NUMBER:  1907215

HOME AFFAIRS REFERENCE(S):           BCC2018/967525

MEMBER:Karen McNamara

DATE:25 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 June 2019 at 9:59am

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 – 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 28 February 2018. 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, Mr Gurvinder Singh Singh (the applicant) is seeking the visa in Direct Entry stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 Schedule 2 to the Regulations because the nomination lodged by Arihant Cars Pty Ltd was refused by the Department on 5 February 2019.

6. The applicant appeared before the Tribunal on 3 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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.

   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 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 Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

12. The applicant told the Tribunal that the nominating employer had lodged an application for review with the Tribunal. The Tribunal told the applicant on numerous occasions throughout the hearing that there was no evidence before the Tribunal to support the applicant was subject of an approved nomination or subject of a nomination review currently before the Tribunal. The applicant repeatedly told the Tribunal that his visa application was subject to a nomination review lodged by the nominator.

13. The applicant claimed that the nominating employer, Arihant Cars Pty Ltd had lodged an application for review with the Tribunal.  In the absence of evidence to substantiate the applicant’s claims, the Tribunal provided the applicant an opportunity to provide evidence that his visa application was subject of a nomination review before the Tribunal, by 4 June 2019.

14. On 3 June 2019 the Tribunal received a telephone call from the applicant and the nominating employer Mr Shah. Mr Shah advised the Tribunal that he had a pending review before the Tribunal and provided a case number. The Tribunal advised Mr Shah that the case number supplied did not relate to the applicant.

15. On 4 June 2019, the applicant via email advised the Tribunal that he required additional time to provide evidence that the nomination review by Arihant Cars Pty Ltd had been lodged with the Tribunal and that the nominator would request the Tribunal’s Adelaide Registry to provide the case number and acknowledgement letter from the Tribunal.

16. On 7 June 2019, the Tribunal wrote to the applicant advising him that Tribunal records show that the nomination review referred to by the applicant, does not relate to the applicant’s application and therefore his application remains not subject of an approved nomination. The Tribunal provided the applicant an opportunity to provide comment or response by 21 June 2019.

17. On 21 June 2019 at 10.47 pm, the applicant via email advised the Tribunal the following:

    “ I do not have approved nomination but my nominated employer have lodged the application of AAT review for nomination as he told me.  He was late to submit the application for review of Nomination (after 21 days) due to some reasons so when he lodged the application online he did not received any acknowledgement letter from AAT due to late submission of review application of nomination.”

    The applicant claims in this email that the nominator advised him that “Immigration or the AAT is still considering the application for review of nomination to accept or reject the application due to late submission of Review of nomination.”

18. The applicant requested the Tribunal to wait until the Tribunal made a decision on the nomination review before making a decision in his matter.

19. The Tribunal has considered the applicant’s submissions and places little weight on the applicant’s assertions that his application is subject of a nomination review application before the Tribunal. As communicated to the applicant in writing on 7 June 2019, Tribunal records show the nominator has not lodged a review application with the Tribunal which relates to the applicant.

20. The Tribunal acknowledges the applicant’s attempts to provide evidence and his request that the matter be delayed pending the outcome of a nomination review. However, in this instance the Tribunal finds any extension or delays would be futile to the applicant’s claims as there is no evidence before the Tribunal to support the applicant’s claim that his visa application is subject to a nomination review before the Tribunal. Nor is there evidence before the Tribunal to support that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

21. Therefore, having considered the evidence before it, the Tribunal finds that the applicant does not satisfy cl 187.233(3).

22. Therefore, as the applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 is not met.

23. 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

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

    Karen McNamara
    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.