Singh (Migration)

[2019] AATA 926

Singh (Migration) [2019] AATA 926 (21 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Manpreet Singh
Master Gobind Singh
Ms Paramjit Kaur

CASE NUMBER:  1902665

HOME AFFAIRS REFERENCE(S):       BCC2017/4164332

MEMBER:Ian Berry

DATE:21 March 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 21 March 2019 at 3:54pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40

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 8 November 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 (Mr Singh) is seeking the visa in Direct Entry stream, to work in the nominated position of Café or Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations because Mr Singh’s nominator’s application identifying him was refused.

6. The applicants were represented in relation to the review by a migration representative.

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 Mr Singh is identified as a nominee in an approved application, which has not been withdrawn.

   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 Mr Singh in relation to the position.

10. In addition, this criterion also requires that:

    ·the person who will employ Mr Singh 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. Mr Singh was nominated for the position of Café or Restaurant Manager by Joshi Qld Pty Ltd trading as ‘Infused Restaurant’ (Joshi). On 29 November 2018, the Department refused its nomination application.

12. Joshi made application to review the Department’s decision. On 4 March 2019, the Tribunal decided that he did not have jurisdiction to determine Joshi’s review application. According to the Australian Securities & Investment Commission (ASIC) records, Joshi had been deregistered on 5 February 2018 and not been reinstated since that time.

13. On 5 March 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Migration Act, inviting them to provide information about Mr Singh’s nominator Joshi Qld Pty Ltd having its nomination application (identifying Mr Singh as the nominee), refused by the Department. It was explained that without an approved nomination, Mr Singh’s application could not succeed, and therefore the other applicants also could not succeed.

14. The invitation was sent to the last address provided in connection with the review and advised that, if the information or comments were not provided in writing by 19 March 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information or comments and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

15. The applicants have not provided the information or comments within the prescribed period and no extension has been granted. In these circumstances, s. 359C applies and pursuant to s. 360(3) the applicants are not entitled to appear before the Tribunal. The effect of s. 360(3) of the Act is that if an applicant has not entitlement to a hearing, the Tribunal has no power to permit him, her or them to appear: Hasran v MIAC [2010] FCAFC 40.

16. The Tribunal has decided to proceed to decision without taking further steps to obtain the information or comments.

17. Therefore, cl.187.233 is not met.

18. Mr Singh 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.

19. As the other applicants (the wife and child of Mr Singh) rely on Mr Singh meeting the criteria they do not meet the secondary criteria.

    DECISION

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

    Ian Berry
    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.