Singh (Migration)

[2023] AATA 1409

Singh (Migration) [2023] AATA 1409 (1 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bhupinderpal Singh

CASE NUMBER:  1925320

HOME AFFAIRS REFERENCE(S):          BCC2017/2269690

MEMBER:Penelope Hunter

DATE:1 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 01 May 2023 at 10:30am

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Service Manager – business no longer wished to employ the applicant –no approved nomination – tribunal affirmed nomination application – not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19, 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 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 27 June 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 (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 Service Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the related nomination application by the applicant’s sponsoring employer, Sheridan Corporation Pty Ltd, had not been approved. The applicant had submitted a copy of the decision record under review to the Tribunal.

6. On 27 March 2023, the Tribunal wrote to the applicant to invite him to appear before the Tribunal on 28 April 2023 via teleconference to give evidence and present arguments.

7. On 14 April 2023, the Tribunal wrote to the applicant pursuant to the provisions of s 359A of the Act inviting him to comment on information that it considered would be a reason or a part of the reason for affirming the decision under review. The relevant information was that on 24 October 2022, the Tribunal had affirmed the decision to refuse the related nomination by Sheridan Corporation Pty Ltd. The Tribunal explained the relevance of the information and informed the applicant that if it relied on the information it may find that the relevant nomination in relation to his visa application had not been approved. Consequently, the applicant would not be able to meet the requirements of cl 187.233(3) of Schedule 2 to the Regulations and the decision under review may be affirmed. The applicant was invited to provide his comment or response on the hearing date, 28 April 2023.

8. On 26 April 2023, the applicant responded to the Tribunal stating he did not have any written evidence to provide but would still be attending the hearing to provide further verbal evidence and information.

9. On 28 April 2023, the applicant appeared before the Tribunal to given evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant satisfies cl 187.233(3) of Schedule 2 to the Regulations.

    Nomination of a position

12. 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.

13. 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.

14. The applicant applied for the visa on the basis of a nomination in the position of Service Manager by Sheridan Corporation Pty Ltd. As set out in the delegate’s decision record this nomination was refused by the Department on 25 July 2019.

15. The applicant told the Tribunal that when he had applied for the visa the company needed him to work there. He submitted that the problem was that the processing of the nomination at the Department stage took so long and it was not until 2019 that it was refused. Although he had still not commenced work with Sheridan Corporation Pty Ltd, he had undertaken relevant studies in automotive services and they were still willing to engage him in the future subject to the grant of a Subclass 187 visa. However, due to the pandemic the plans for expansion of the business changed and he claimed that Sheridan Corporation Pty Ltd no longer wished to persist with the sponsorship. The applicant told the Tribunal that he had contacted the business recently leading up to the review but they no longer wished to employ him.

16. On the information before the Tribunal, Sheridan Corporation Pty Ltd had applied to the Tribunal for a review of the Department’s decision to refuse the nomination. On 24 October 2022, the Tribunal (differently constituted) affirmed the decision to refuse the nomination. The applicant did not dispute this and his evidence, as set out above, is that they have informed him they no longer wish to proceed with the nomination. This means that the delegate’s decision has not changed and the Tribunal finds that the relevant nomination for the applicant has not been approved.

17. The applicant further told the Tribunal that he had in the meantime set up his own business and he believed that it would be successful. He wished to delay a decision of the Tribunal for at least five months as he thought that he may in the future satisfy the criteria for an alternative visa. The Tribunal refused the request to delay the matter. On the material before it the applicant has never actually worked for his nominating employer, he has also for some time been aware that he would not satisfy the criteria for the visa under review, and any delay in proceeding to a decision would not change this position. It is not for the Tribunal to speculate as to whether he would satisfy another visa in some point in the future and any further delay would not be consistent with the objectives of the Tribunal.

18. The Tribunal finds that the applicant does not meet cl. 187.233(3) and cl 187.233 of Schedule 2 to the Regulations has not been met as a whole.

19. 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

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

    Penelope Hunter
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.