Singh (Migration)

[2018] AATA 2358

Singh (Migration) [2018] AATA 2358 (21 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Karamjeet Singh
Mrs Navjot Arora
Miss Sehajta Chawla

CASE NUMBER:  1716663

DIBP REFERENCE(S):  BCC2016/2022980

MEMBER:Warren Stooke AM

DATE:21 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 21 May 2018 at 11:59am

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, 359AA
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 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 12 June 2016. 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 the Direct Entry stream, to work in the nominated position of Pastry cook – ANZSCO 351112. 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 visas because the applicant did not meet the requirements of cl.187.233 of Schedule 2 to the Regulations and specifically the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa were not satisfied.

6. The applicant, Mr Karamjeet, appeared before the Tribunal on 15 May 2018 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

8. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

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 that the applicant does not have a valid nominated position with the sponsor. In this regard, Australian Skills Program’s application for support of a nominated position was refused by the delegate on 30 May 2017 and affirmed by the Tribunal on 2 May 2018 [Tribunal Case 1713069].

11. At the commencement of the hearing the Tribunal provided the applicant with an overview of the requirements of cl.187.233 and the criteria that is required to be met. Further, pursuant to s359AA the Tribunal provided the applicant with a copy of the decision pertaining to the nomination of 2 May 2018 [Tribunal Case 1713069] and provided the applicant with the opportunity to read the decision before proceeding.

12. The applicant is a 36 year old from India, who gave evidence that he has been in Australia for 11 years. He advised that he originally studied patisserie where he gained a Certificate IV and had previously applied for a s485 visa. The applicant is now working as a motor mechanic in Ballarat for Midas.

13. The applicant gave evidence that he was initially invited by Mr. Shivam Joshi, who operates Australian Skill Program, to fill a position of pastry cook in the Ballarat area. He stated that – “I was in touch and agreed to terms and conditions of visa”. The applicant explained that this entailed a commitment to work for at least 2 years.

14. The applicant confirmed, in response to a question from the Tribunal, that he did not pay any money and at this time had not performed any work for the nominating sponsor.

15. The applicant gave evidence that the nominator is unapproachable and that his agent had tried many ways to make contact and there has been no response. He gave evidence that every email had been forwarded to the employer and he was uncontactable.

16. The Tribunal informed the applicant that it is not permissible for the Tribunal to provide advice to applicants; however it was recommended that the applicant contacts his migration agent to obtain advice on the circumstances pertaining to this case.  

    Nomination of a position

17. 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).

18. 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.

19. On the basis that there is no evidence before the Tribunal of an approved nomination under r.5.19(4), the applicant is unable to satisfy the Tribunal that he is able to meet the criteria required under cl.187.233(3), whereby the position has been approved by the Minister.

20. Therefore, cl.187.233 is not met.

21. 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.

22. The secondary applicants included in the application have not made any claims other than as claimed member of the primary applicant's family unit, for the purpose of this application. As the primary applicant has not satisfied the primary criteria for this visa class, the secondary applicants as members of his family unit are therefore also unable to satisfy the criteria for this visa class decision.

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

    Warren Stooke AM
    Member