Singh (Migration)

[2019] AATA 3020

Singh (Migration) [2019] AATA 3020 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Parminder Pal Singh
Mrs Kuldeep Kaur
Miss Sirat Kaur
Master Sehaj Singh Sran

CASE NUMBER:  1618790

DIBP REFERENCE(S):  BCC2016/1314358

MEMBER:Ian Berry

DATE:29 May 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 29 May 2019 at 10:12am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Motor Mechanic – 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 Immigration on 21 October 2016 to refuse to grant the visa applicant a (direct entry stream) Regional Employer Nomination (Permanent) Subclass 187 visa under s.65 of the Migration Act 1958 (‘Act’).

2. The visa applicant (‘applicant’) applied for the visa on 30 March 2016. The delegate refused to grant the visa because the nomination application identifying the applicant was refused: cl.187.233(3).

3. The applicant and the secondary applicants (‘applicants’) were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue is whether the applicant has an approved nomination which has not been subsequently withdrawn.  

6. On 9 May 2019, the applicant’s nominator (the Trustee for Bandesha Cabs) had its nomination application (identifying the applicant) refused by the Tribunal.

7. On 10 May 2019, the Tribunal wrote to the applicants requesting information as to whether the applicant has an approved nomination.

8. On 24 May 2019, the applicant’s migration agent advised the Tribunal:

   ‘I hope you are well. 

   I am writing this email regarding the aforementioned AAT Case.

   Actually, Parminder Pal Singh lodged another AAT review application (Nomination (Case Number: 1819353) under the same employer for the same nominated occupation.

   I would like to request you to link Case Number 1618790 with Case Number: 1819353 as the visa applicant is the same nominee and waiting on similar nomination AAT case to be decided.

   If you need more information, please feel free to contact me at undersigned.

   Look forward to an early and prompt revertal at the soonest.  Thank you’

9. A search of the tribunal records indicates that Tribunal Case Number 1819353 is a nomination application (‘second nomination’) by the Trustee for Bandesha Cabs made on 28 September 2016 nominating the applicant (Parminder Pal Singh) for the identified occupation of Motor Mechanic (General) identified in ANZSCO[1] code 321211, which is the same position as identified in the nomination application relating to this visa application.

   [1] Acronym for ‘Australian and New Zealand Standard Classification of Occupations’, 2013, version 1.2

10. The second nomination application (made 27 June 2018) was refused by the delegate on

    
    

    27 June 2018. The applicant requests his visa application (the subject of this decision) be linked to the second nomination.

11. The applicant’s visa cannot be granted unless the legal requirements in the Migration Act 1958 and Regulations are satisfied. He needs to satisfy cl. 187.233 of schedule 2 to the Regulations. Clause 187.233(1) sets out the criteria that the applicant must satisfy:

    (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) sub-regulation 5.19(4)(h)(ii); or

    (ii) subregulation r.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.

12. Referencing cl.187.233(1)(b), Item 1114(3)(d) contains the application requirements are contained within Item 1114C (Regional Employer Nomination (Permanent) (Class RN). This item details the form, visa application charge and other matters relevant to the application. Item 1114(3)(d) states:

    (d)An applicant seeking to satisfy the primary criteria must declare in the application that the position to which the application relates is a position nominated under regulation r.5.19.

13. The submission by the applicant to link the current visa application with the second nomination application is unsupported by the legislation. The construction of Item 1114C(3)(d) is interpreted by the Tribunal as an applicant declaring in his visa application that the position of Motor Mechanic (General) is the position in the nomination application lodged by the nominator (identified in the first nomination) identifying the same nominee for the same position.

14. The applicant contends that the current visa application can be linked with the second nomination application because they have in common the same nominator, nominee and occupation. That is not what is contemplated in this item. If that was the position, an applicant could simply keep lodging nomination applications ad infinitum.

15. By reason of the nomination application having been refused (where he is identified as the nominee), the applicant does not satisfy cl.187.233(3) of the Regulations, which states:

    (2)      The Minister has approved the nomination.       

16. The Tribunal finds the applicant does not satisfy cl.187.233.

17. Finally, 187.311 requires inter alia that an applicant is a member of the family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of that visa.  As, neither the applicant, nor any family member of the applicant has satisfied the primary criteria for the grant of the Subclass 187 visa, the Tribunal is not satisfied that cl.187.311 has been met.

    DECISION

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

    Ian Berry
    Member