SINGH (Migration)

[2018] AATA 2914

SINGH (Migration) [2018] AATA 2914 (19 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SANDEEP SINGH
Mrs BALJIT KAUR
Mr PRABHTAJ SINGH SANGHA
Mr MANRAJ SINGH SANGHA

CASE NUMBER:  1724237

DIBP REFERENCE(S):  BCC2017/1657093

MEMBER:R. Skaros

DATE:19 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 July 2018 at 12:49pm

CATCHWORDS
Migration – Regional Employment Nomination (Permanent) – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition Stream – Nomination approval – Tribunal affirmed nomination refusal – Practice and Procedure – Applicant did not respond to hearing invitation – Decision made on review – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A, 359C, 360, 363A
Migration Regulations 1994, r 5.19 Schedule 2 cl 187.223

CASES

Hasran v MIAC [2010] FCAFC 40

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 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 9 May 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 (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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Mixed Crop Farmer with B Sangha HS Sangha & K Sangha. This stream is designed for Subclass 457 visa holders who have worked for their employer for at least the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223(2) of Schedule 2 to the Regulations because the associated nomination was not approved.

6. The applicants applied for review of the delegate’s decision and a copy of the decision record was provided to the Tribunal. The applicants were represented in relation to the review by their registered migration agent.

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 the relevant nomination has been approved.

   Nomination of a position

9. Clause 187.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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, this criterion also requires that the nomination has been approved.

10. The applicant applied for the visa on the basis of an employer nomination lodged by B Sangha HS Sangha & K Sangha on 18 April 2017 (the associated nomination). The Tribunal is satisfied on the information before it that the associated nomination identified the applicant as the relevant Subclass 457 visa holder, even though at that time of that nomination the applicant ceased to hold a 457 visa, and that it was against the position in that nomination that the relevant declaration was made in the visa application, as required by cl.186.223(1).

11. Information in the decision record indicates that the linked nomination was refused by the Department. The delegate proceeded to refuse the application for the visas on the basis that the associated nomination had not been approved.

12. B Sangha HS Sangha & K Sangha applied for review of the delegate’s decision not to approve the associated nomination. On 24 May 2018, the Tribunal affirmed the Department’s decision not to approve that nomination.

13. On 20 June 2018 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the Tribunal’s decision affirming the Department’s decision not to approve the associated nomination, which the Tribunal explained is relevant to the requirement in cl.187.223(2) which requires the associated nomination to be approved.

14. The invitation was sent to the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 4 July 2018 the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

15. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are 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.

16. The Tribunal is satisfied that the invitation to comment was correctly sent to the authorised recipient’s email and properly informed the applicant that a non-response may result in the Tribunal proceeding to a decision on the information before it. Furthermore, the information before the Tribunal indicates that the associated employer nomination has not been approved, and given the applicant would be unable to rely on any other nomination to succeed in this review, the Tribunal considers it futile to delay making its decision in this case. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

17. As the associated nomination has not been approved, it follows that the applicant does not meet the requirements of cl.187.223(2). Consequently, cl.187.223 has not been met as a whole.

18. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

19. The secondary applicants applied for their visas on the basis of being members of the first named applicant’s family unit. The first named applicant does not meet the primary requirements for the visa and there is no evidence before the Tribunal to suggest that any of the secondary applicants meet the primary requirements for the visa. In the circumstances, the Tribunal must also affirm the decision in respect of the secondary applicants.

    DECISION

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

    R. Skaros
    Member