Singh (Migration)

[2018] AATA 2189

Singh (Migration) [2018] AATA 2189 (10 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prabhjot Singh

CASE NUMBER:  1701344

DIBP REFERENCE(S):  BCC2016/763017

MEMBER:Stavros Georgiadis

DATE:10 May 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 10 May 2018 at 3:47pm

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
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 23 February 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411). 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 because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations as the nominated position to which the visa application relates had not been approved (cl.187.233(3)).

6. The applicant was represented in relation to the review by his 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 visa applicant meets the criteria for grant of the (Class RN) visa.

   Nomination of a position

9. 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. 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).

10. 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.

11. The Tribunal has examined the visa application on the Department’s file and notes that the required declaration has been made in relation to the position nominated by the employer sponsor (cl.187.233(1)).

12. The Tribunal is satisfied, on the documentary evidence before it, that the person who will employ the applicant is the nominator in the application for approval, EXQUISITE FOOD GROUP PTY LTD.  Thus the applicant meets cl.187.233(2). There is no evidence before the Tribunal that the position has been subsequently withdrawn and is not still available to the applicant (cl.187.233(4) and cl.187.233(5)). 

13. On 23 April 2018 the Tribunal made a decision on the papers to affirm the decision under review in respect of the nomination under r.5.19 in the related AAT case-file number 1620982 for the reasons set out in the Decision Record for that case dated 23 April 2018, refusing the nomination.

14. On 24 April 2018 the Tribunal wrote to the applicant via his authorised migration agent and provided a copy of the aforementioned decision refusing the nomination application by the employer in matter 1620982. The Tribunal put to the applicant, in accordance with the procedure set out under s.359A of the Act, that without an approved nomination, the applicant would not be able to satisfy the criteria provisions in cl.187.233 (specifically cl.187.233(3)) for the grant of the Class RN 187 visa. The Tribunal invited the applicant to comment on or respond to the information that a decision had been made by the Tribunal on 23 April 2018 to refuse the nomination of the occupation of Cook in respect of the applicant and that this would be the reason, or part of the reason, for affirming the decision under review in these proceedings. The Tribunal allowed the applicant additional time (by 8 May 2018) to comment on or respond to the adverse information.

15. The applicant did not reply to the invitation to comment on or respond to this adverse information, noting that a hearing initially scheduled for 30 April 2018 (as a combined hearing with the sponsor employer regarding the nomination in respect of the applicant) had been cancelled for reasons set out in the Decision Record of the related matter 1620982 - (essentially no response by the employer to an invitation to provide information resulting in loss of the right to a hearing). The Tribunal has therefore, proceeded to determine and finalise the present matter.

16. Having considered the available evidence before it, the Tribunal is satisfied that the position of Cook (ANZSCO 351411) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.233(3). The Tribunal finds that the nomination of the position to which the application relates is not approved.

17. Therefore, cl.187.233 is not met.

18. 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

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

    Stavros Georgiadis
    Member