SINGH (Migration)

[2019] AATA 1177

SINGH (Migration) [2019] AATA 1177 (2 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sandeep SINGH
Mrs Amrit KAUR
Mr Viraaj SINGH

CASE NUMBER:  1823547

HOME AFFAIRS REFERENCE(S):           BCC2015/3628542

MEMBER:R. Skaros

DATE:2 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 April 2019 at 11:27am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Hairdresser – subject of an approved nomination – nomination application refused – no discretion – 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 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 2 December 2015. 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 Hairdresser with HRS ACT Australia Pty Ltd.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the relevant employer nomination made by HRS ACT Australia Pty Ltd had not been approved.

6. The applicant provided a copy of the delegate’s decision record which indicates that the nomination was refused by the Department on 20 June 2018.

7. On 13 December 2018, the Tribunal wrote to the applicants noting that the nomination of the position has not been approved and requesting the applicant provide information as to whether the relevant nomination has been approved or if there is a pending application for review of the decision not to approve the nomination. No response was received by the Tribunal.

8. The applicants appeared before the Tribunal on 12 March 2019 to give evidence and present arguments.

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 relevant nomination has been approved.

    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. In addition, this criterion also requires that the nomination has been approved: cl.187.233(3).

12. The applicant applied for the visa on the basis of an employer nomination made by HRS ACT Australia Pty Ltd in which he was identified as the person for the position. That nomination, as indicated in the decision record, was refused by the Department. There is no evidence before the Tribunal which indicates that the decision to refuse the nomination has been set aside or is being reconsidered.

13. At the hearing, the Tribunal discussed with the applicant the requirements in cl.187.233 and the information before it which suggests he does not meet that requirement. In response, the applicant stated that the Department requested further documents from the employer and the employer provided it. He stated that he does not understand why the Department refused the nomination and that he has worked for the employer for over 2 years. The applicant stated that he has lived in Australia for 14 years and has done nothing wrong. He stated that his son was born in Australia and has commenced school. He stated that he has been working, the family is settled in Australia and they consider Australia home. He stated that it would be difficult for them to return to their home country.

14. The Tribunal explained to the applicant that it had no discretion to take into account any mitigating circumstances and that it must apply the law. The applicant stated that they had provided all of the requested documents for the nomination. The Tribunal noted that the only matter before it relates to the refusal of the visa application and not the nomination.

15. The Tribunal has had regard to the evidence before it and acknowledges the difficulties stated by the applicant. However, as explained to the applicant at the hearing, there is no provision in the legislation for the Tribunal to take into account his family’s circumstances or the issues relating to the refusal of the nomination. The Tribunal must make its decision in accordance with the relevant provision.

16. The evidence before the Tribunal indicates that the nomination for the position lodged by HRS ACT Australia Pty Ltd in respect of the applicant, about which the visa applicant made the required declaration in the visa application, was refused. There is no evidence before the Tribunal to suggest, and the applicant has not claimed, that the decision to refuse the associated nomination was revoked or set aside. In the circumstances, the applicant does not meet the requirements in cl.187.233(3).  Therefore, cl.187.233 is not met.

17. 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.

18. The secondary applicants applied for the visa on the basis of being members of the family unit of the first named applicant. As the first named applicant does not meet a requirement for the grant of the visa, the Tribunal must also affirm the decision in respect of the secondary applicants.

    DECISION

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

    R. Skaros
    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.