SINGH (Migration)

[2018] AATA 3562

SINGH (Migration) [2018] AATA 3562 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Major Singh

CASE NUMBER:  1610142

DIBP REFERENCE(S):  BCC2015/2999597

MEMBER:Denise Connolly

DATE:16 August 2018

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 16 August 2018 at 2:39pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 360, 360A
Migration Regulations 1994 (Cth), r 5.19(4), 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 Immigration and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 October 2015. 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 the applicant. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the related nomination application was refused.

6. The applicant was invited to appear before the Tribunal on 30 July 2018, to give evidence and present arguments.  On 26 July 2018 the applicant wrote to the Tribunal seeking more time to ‘collect the relevant paperwork’.  The Tribunal considered this to be a request for a postponement of hearing. It considered whether to do this but formed the view it should proceed with the hearing as scheduled and discuss with the applicant at the hearing whether there was any utility in agreeing to provide further time for the applicant to provide documents. The Tribunal wrote to the applicant on 26 July 2018 and advised that it had not agreed to postpone the hearing. The letter advised the applicant that the hearing remained scheduled for 30 July 2018 at 2pm (in Perth). The hearing invitation was sent to the applicant at the email address provided to the Tribunal by the applicant for correspondence.  There is no evidence before the Tribunal to suggest the delivery of that email failed. The Tribunal also notes that the applicant responded to first hearing invitation which was sent to the same email address.

7. The Tribunal also sent SMS text messages to the applicant, on 23 and 27 July 2018, to remind the applicant about the hearing, using the contact mobile number provided to the Tribunal. The Tribunal has checked the applicant’s details provided and it is satisfied the contact mobile number used for this purpose was the last number provided to the Tribunal. The Tribunal has not received a response to the hearing invitation sent on 26 July 2018 and the applicant did not attend the hearing. Nor was there a further request made for a postponement of hearing.

8. The Tribunal is satisfied that the applicant was invited to appear before the Tribunal to give evidence and present arguments under s.360 of the Act. The Tribunal is satisfied that the applicant was sent a notice under s.360A of the Act giving the day and the time on which he was scheduled to appear. The Tribunal is satisfied that the notice met all of the requirements of s.360A. The Tribunal finds that the applicant did not appear before the Tribunal on the scheduled day, at the scheduled time.

9. The Tribunal subsequently wrote to the applicant under s.359A of the Act (discussed in more detail below) and the applicant did not respond within the prescribed time. Nor did he seek an extension of time to provide his response or comments. Accordingly he has lost his entitlement to a hearing. The Tribunal now proceeds to make its decision on the evidence before it. 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

10. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

11. 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.

12. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that on 11 May 2016, the nomination lodged by the Master Chefs Pty Ltd, being the nomination referred to in cl.187.233(1), was refused by the delegate. The delegate found that as the nomination had been refused the applicant did not meet cl.187.233(3), which requires that the Minister has approved the nomination.

13. Master Chefs Pty Ltd lodged an application for review of the decision to not approve the nomination application. On 5 July 2018 the Tribunal affirmed the decision.

14. The Tribunal wrote to the applicant under s.359A on 1 August 2018 inviting his comments on, or response to, the information that on 5 July 2018 the Tribunal affirmed the decision to not approve the nomination application made by Master Chefs Pty Ltd. The Tribunal explained that this information is relevant because if relied on the Tribunal would find that the applicant does not meet cl.187.233(3) and it would affirm the Department’s decision. The applicant did not respond.

15. On the basis of the evidence before it, the Tribunal finds the nomination made by Master Chefs Pty Ltd, the nomination referred to in cl.187.233(1), has been refused. Therefore the nomination has not been approved and cl.187.233(3) is not met.

16. Therefore, cl.187.233 is not met.

17. 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

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

    Denise Connolly
    Member