Singh (Migration)

[2023] AATA 2023

Singh (Migration) [2023] AATA 2023 (29 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sharandeep Singh

REPRESENTATIVE:  Mr Ged Boylan (MARN: 9791459)

CASE NUMBER:  1926962

HOME AFFAIRS REFERENCE(S):          BCC2018/980115

MEMBER:Sheridan Aster

DATE:29 June 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 29 June 2023 at 11:01am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – cook – subject of approved position nomination – related nomination application refused and affirmed in separate review – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

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 (Cth) (the Act).

2.The applicant applied for the visa on 1 March 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 (Cth) (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of cook.

5.The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, which requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream.

6.The applicant was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Nomination of a position

8.Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

9.In addition, this criterion also requires that:

·the person who will employ the applicant is the person who made the 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 reg 1.13A and reg 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.

1. On 28 February 2018, The Trustee for Virk Family Trust applied to the Department of Home Affairs to nominate the applicant for the position of cook.

2. On 8 August 2019, the application for approval of the nominated position was refused by the Department. The nominator applied to the Tribunal for merits review of that decision. On 13 June 2023, the Tribunal affirmed the decision not to approve the nomination. This means that the position to which the application relates is not the subject of an approved nomination.

3. On 14 June 2023, the Tribunal invited the applicant to comment on or respond to the above information. The letter outlined that the information was relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination: cl 187.233(3) of Schedule 2 to the Regulations.

4. It was also explained that the information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse the grant of the visa.

5. The invitation advised that if the comment or response was not provided in writing by 28 June 2023, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s views on the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. At the date of this decision, no comments or response had been received and the Tribunal has exercised its discretion to make a decision without seeking further information from the applicant. For the reasons outlined above, the Tribunal finds that the position is not the subject of a nomination approved by the Minister as required by cl.186.233 (3). Therefore, cl 187.233 is not met.

7. 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

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

Sheridan Aster
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.