Singh (Migration)

[2023] AATA 953

Singh (Migration) [2023] AATA 953 (19 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gulab Singh

REPRESENTATIVE:  Shahid Nadeem (MARN: 0851112)

CASE NUMBER:  1922736

HOME AFFAIRS REFERENCE(S):          BCC2017/3571655 PNJ

MEMBER:Karen McNamara

DATE:19 April 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 19 April 2023 at 10:55am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – hotel or motel manager – subject of approved position nomination – related nomination application refused – nominating employer’s ABN cancelled and refusal affirmed in separate review – no response from applicant to hearing invitation or invitation to comment – authorised recipient unable to contact applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Kaur v MIBP [2014] FCA 915
Manna v MIAC [2012] FMCA 28
MIAC v Li [2013] HCA 18
MIBP v Singh [2014] FCAFC 1

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 Mr Gulab Singh (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 29 September 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 Motel Manager under the occupation of Hotel or Motel Manager ANZSCO 141311.

5. The decision record provided to the Tribunal, records that the delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, which required the applicant to be the subject of an approved nomination. The delegate found that the nomination lodged by Rafic Succar (the nominator) was refused by a delegate of the Minister for Immigration and Border Protection on 19 June 2019.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. The applicant lodged an application for review with the Tribunal on 15 August 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations.

    Nomination of a position

11. 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.

12. 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.

13. On 13 March 2023, the Tribunal invited the review applicant under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal on 15 May 2023 at 9:30 am. The Tribunal notes that at the time of this decision the applicant has not responded to this invitation.

14. On 3 April 2023, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to his comments or response, be the reason or part of the reason for affirming the decision under review. 

15. The information related to information before the Tribunal that shows on 17 August 2022, the Tribunal affirmed the Department’s decision not to approve the nomination in relation to the applicant made by the nominating employer Rafic Succar. Additionally, Mr Succar’s ABN as a sole trader was cancelled from 22 July 2022.

16. The Tribunal’s letter of 3 April 2023 noted that this information is relevant because the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister (cl.187.233(3)). The letter further stated:

    ‘  If the Tribunal relies on this information, it may find that the nomination in relation to

    you has not been approved and consequently the decision under review would be
    affirmed.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 17 April 2023. If the comments or response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 17 April 2023, you may ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 17 April 2023, and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    An invitation to attend a scheduled hearing was sent to you on 13 March 2023. Please note, however, that if you do not respond to this letter within the date specified or within any extended timeframe, you may lose your right to attend the scheduled hearing and it will be cancelled. The Tribunal may then proceed to make a decision on the review without taking any further action to obtain your views on the information.’

17. The invitation to comment/respond was sent to the authorised recipient at the last email address provided in connection with the review and advised as stated above, if the comments/response were not provided in writing by 17 April 2023, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s comments and the review applicant would lose any entitlement he may otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

18. On 3 April 2023 via email the authorised recipient advised the Tribunal as follows;

    ‘ We act for the review applicant in the aforementioned application.

    We refer the Tribunal’s correspondence dated 13 March 2023 and bring to the Tribunal’s attention that, despite various attempts, we are unable to establish a contact our client for instructions. In the absence of instructions from client, we are unable to complete and provide a completed Response to Hearing Invitation to the Tribunal.

    We will continue our attempts to contact our client. We will inform the Tribunal when and if, we are able to contact our client.’

19. As at the time of this decision, the review applicant has not provided the comments or a response within the prescribed period and no extension has been sought or has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40. Accordingly, the applicant has lost the right to appear before the Tribunal to give evidence and present arguments relating to this review application.

20. The Tribunal has carefully considered whether to afford additional time to the applicant to provide comment as requested in the s.359(a) invitation, or to provide further material in support of their application for review.

21. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

22. The Tribunal is satisfied that the invitation to provide comment was sent to the correct email address. The invitation was not returned to sender as undeliverable mail. At the time of this decision, the applicant has not provided comment, or a response and the applicant has not made contact with the Tribunal to indicate that a response is forthcoming.

23. The Tribunal has also taken into account the fact that the implications of not providing the comments/response as requested in the invitation from the Tribunal, were set out in the Tribunal’s letter of 3 April 2023.

24. In the circumstances, the Tribunal has decided to proceed to make its decision on the available evidence without taking further steps to obtain the applicants’ comments.

25. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.187.233(3) of Schedule 2 to the Regulations.

26. As the applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

27. 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

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

    Karen McNamara
    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.