Singh (Migration)

[2019] AATA 707

Singh (Migration) [2019] AATA 707 (7 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harpreet Singh
Ms Hardeep Kaur

CASE NUMBER:  1804706

HOME AFFAIRS REFERENCE(S):           BCC2016/2752518

MEMBER:Cathrine Burnett-Wake

DATE:7 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 07 March 2019 at 3:59pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – subject of an approved nomination – delay in finalising decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

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 19 August 2016. 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 Retail Manager (ANZSCO 142111).

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 associated nomination by True Dreams Pty Ltd ATF True Dreams Trust was not approved.

6. The applicants appeared before the Tribunal on 15 February 2019 to give evidence and present arguments.

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 there is an approved nomination.

   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. At hearing the applicant conceded that there was no nomination by True Dreams Pty Ltd ATF True Dreams Trust.

12. The applicant told the Tribunal that after the nomination was refused, his employer said that everything would be fine and they could still ‘move it forward’. However after some time the employer changed their mind and no longer wanted to support the application.  He stated that he then took it into his own hands and applied on his own and that he needed more time to find a new job.

13. The Tribunal discussed with the applicant that its view was that this current visa application under review could not be linked with a subsequent nomination application if were to find a new employer willing to sponsor him.

14. The Tribunal explained to the applicant that it had no discretion to consider the circumstances that led to the nomination being refused and that it was solely determining whether there was an approved nomination relating to this visa application under review and that the information before the Tribunal was there was no approved nomination.

15. The applicants’ prior to the conclusion of the hearing both requested that the Tribunal delay in making its decision, so the applicant could have more time to find a job. Additionally, the applicants advised that their baby needs to complete her immunisation schedule, and that they would appreciate an extension of time for this.

16. Following the hearing the Tribunal wrote to the applicants pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicants to comment on or respond to the information. The particulars of the information were that the application for approval of the related nominated position made by True Dreams Pty Ltd ATF True Dreams Trust was refused by a delegate of the Minister for Immigration. Meaning that the nominator’s application for the nominated position has not been approved. The letter further explained to the applicants that this information was relevant to their 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.

17. In response to the Tribunal’s letter the applicants provided a written letter which stated in part:

    I am writing this E-mail in connection to respond the information asked for in writing based on decision about RSMS visa.

    As you know that on 15 February 2019 we both Harpreet singh (primary applicant) and Hardeep kaur (secondary applicant) attended the hearing about this matter. Now again, I do want to state that I am still persistent to find a new opportunity as a retail manager around skill shortage states because my last employer has stepped back to proceed further with this nomination application. However, I am also aware that my new employment might be or might not be support my current visa application but, surely will help me to lodge a fresh application based on my skills and academic qualification which I have acquired.

    I also want to express that I have come across with few migration agents and have seen some links which they uploaded on their websites, and was very surprised to know that there were few cases who has got same refusal reasons as mine, but later after review, they have got their visa granted based on those same refusal reasons in same industry with meeting same requirements so as I.

    It is our misfortune that our nominator is not supporting us anymore, Consequently, if decision based on this application gets affirm which is certain, it would, therefore, be very extremely difficult for me locate alternatives.

    Apart from this, our child's second dose of Meningococcal is due in July this year and she already had her first one January 2019. Therefore, you are requested to look deeply into this matter and allow us to get her's second dose here. We do understand that she can have it around the globe anywhere, but, we are very concerned about it and looking forward to make it consistent if possible.

    I would, therefore, request you to consider this e-mail as a humble request to grant us extension for few months.

18. The applicant has not put forward or explicitly stated case references to support his claim other cases with the same facts have been successful at review. Notwithstanding this, the Tribunal is not bound by previous decisions it makes.

19. The Tribunal has decided not to delay in finalising its decision. Firstly, as outlined to the applicants at hearing, the Tribunal’s role in this visa review is to solely determine whether there was an approved nomination relating to this visa application under review and that the information before the Tribunal, and as agreed by the applicants, is that there was no approved nomination. Secondly, the applicant claims he needs more time to find a job, however, at hearing the Tribunal outlined to the applicant that it was its view that even if he were to secure a new job, and the employer agreed to lodge a nomination, this application under review could not be linked to a new and subsequent nomination application. Thirdly, regarding the applicant’s daughter’s vaccinations. This was discussed at hearing, and the applicants conceded that their daughter was able to have the relevant vaccinations in India. The Tribunal does not consider the reasons put forward to be sufficient enough to delay its decision.

20. The facts are not under dispute, and both parties agree that there is no approved nomination. Therefore, cl.187.233 is not met.

21. 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.

22. Pursuant to cl.187.311, the Tribunal must also affirm the decision to refuse to grant a subclass 187 visa to the second named applicant as she does not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence that she can meet the primary criteria in her own right.

    DECISION

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

    Cathrine Burnett-Wake
    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.