Singh (Migration)

[2018] AATA 5762

Singh (Migration) [2018] AATA 5762 (10 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Simranjit Singh

CASE NUMBER:  1710040

HOME AFFAIRS REFERENCE(S):           BCC2016/2664981

MEMBER:Katie Malyon

DATE:10 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 10 December 2018 at 12:28 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent)(Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Motor Mechanic – nomination refused – company in administration – Tribunal attempted to contact Applicant – no response – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 1.13, Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40

Singh v MIBP [2017] FCAFC 105

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 and Border Protection to refuse to grant the applicant, Indian national Mr Simranjit Singh, a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Singh applied for the visa on 12 August 2016.  At the time of application, Class RN contained one subclass only: 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).  Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

4. In the present case, Mr Singh is seeking the visa in the Direct Entry stream.  He was represented in relation to the review by his registered migration agent.

5. The delegate refused to grant the visa because Mr Singh did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application made by his prospective employer was refused by the Department.

   Background

6. Mr Singh was nominated by his prospective employer, Orange Mamba Pty Ltd (the Company), to work in Cairns in the position of Motor Mechanic (General).  The Company’s nomination was refused by the delegate on 4 May 2017.  The Company sought review of the delegate’s refusal of its nomination application in related matter number 1708970.  Publicly available information on the ASIC website confirms that the Company is in external administration.  On 21 November 2018, the Tribunal made a decision to affirm the Department’s decision not to approve the Company’s nomination in respect of the position of Motor Mechanic (General) for Mr Singh. 

7. Accordingly, on 23 November 2018, the Tribunal wrote to Mr Singh pursuant to s.359A of the Act inviting him to comment on, or respond to, information which would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse his Subclass 187 visa application. The Tribunal informed Mr Singh that it had affirmed the Department’s decision to refuse the nomination application made by the Company in respect of him. As a result, the position to which his Subclass 187 visa application relates could not meet criteria in cl.187.233 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

8. The Tribunal’s letter to Mr Singh was sent to the representative who lodged his review application with the Tribunal. Mr Singh was requested to provide any comments or response to the information in the Tribunal’s s.359A letter on or before 7 December 2018. No response was received from Mr Singh, or his representative.

9. As Mr Singh has not provided any response to the Tribunal’s s.359A letter, s.359C of the Act applies and, pursuant to s.360(3) of the Act, he is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

10. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

11. Clause 187.233 of Schedule 2 to the Regulations, as applicable in this case, is set out in full in the Attachment to this decision.  Essentially, it requires that the position to which the application relates must be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia.  The nominated position must be the one that was the subject of the mandatory declaration made as part of the visa application.  

12. 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.

13. Review of the Department’s file in relation to Mr Singh’s Subclass 187 visa application confirms that he made the requisite declaration regarding the nomination made by the Company with Transaction Reference Number EGOC7R4AVR. However, that nomination was refused by the Department and, subsequently, the Tribunal affirmed the decision to refuse the nomination. Mr Singh has failed to provide any response to, or comment on, this information when requested to do so by the Tribunal in its s.359A letter. In the circumstances, as the nomination application made by the Company for the position of Motor Mechanic (General) to which Mr Singh’s Subclass 187 visa application relates has not been approved, it follows that he does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process. Therefore, cl.187.233 of Schedule 2 to the Regulations is not met.

14. 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.

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from the Migration Regulations 1994
    
    

    Schedule 2

    ..

    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.

    oOOo