Singh (Migration)

[2017] AATA 2263

Singh (Migration) [2017] AATA 2263 (24 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gagandeep Singh

CASE NUMBER:  1711707

DIBP REFERENCE(S):  BCC2016/3006165

MEMBER:Karen Synon

DATE:24 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 24 October 2017 at 2:27pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent)(Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Dismissed from employment – Nomination subsequently refused – No current approved nomination

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.233, r 5.19(4)(h)(i)

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 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 to the Department of Immigration for the visa on 9 September 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 ‘Motor Mechanic (general)’.  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 cl.187.233 of Schedule 2 to the Regulations because the nomination lodged by ‘Edney’s Leongatha Pty Ltd’ was refused on 11 April 2017.

6. The applicant applied for review of the primary decision on 1 June 2017 and provided a copy of the department’s decision to the Tribunal.

7. Prior to the hearing a number of documents were provided including: payroll advices addressed to the applicant issued by Gas Motors Pty Ltd; an Employment Registration Form for the Trades Recognition Job Ready Program; and a letter addressed to Edney’s Leongatha titled dated 1 November 2016 regarding his dismissal from Edney’s Leongatha which the letter writer claims was “without warning and for seemingly inappropriate reasons”.

8. An accompanying submission relevantly contended that the applicant acknowledges he does not meet cl.187.233 and the employer has not lodged a review application with the AAT.  It was submitted that the factors leading to the refusal were beyond the applicant’s control and he was a victim of discrimination.  After months of job search the applicant selected Edney’s Leongatha who was ready to sponsor him under the RSMS scheme and the employer lodged some but not all of the required nomination documents.  The applicant was harassed by other workers regularly because they were not happy he was selected for this job; they were unfriendly from the first day and when the applicant was dismissed on the grounds of unsatisfactory work performance on 21 October 2016 he was not given any justification and his employer refused to speak with him.  The applicant tried to resolve the issue with the assistance of a lawyer but this was unsuccessful.  After his dismissal from Edney’s Leongatha, the applicant secured employment as a full time motor mechanic with Brighton Toyota which he commenced in January 2017.  He has registered for the Job Ready program and has completed 9 of the required 12 months employment experience required to get a full skills assessment.  He will then be eligible for General Skilled Migration.  It was requested that the Tribunal delay its decision  for 3 months.

9. The applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.

10. The applicant appeared before the Tribunal on 16 October 2017 to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is cl.187.233.

    Nomination of a position

13. 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)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination 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.

14. 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.

15. The Tribunal explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to him.  As recorded in the primary decision, a copy of which he provided to the Tribunal, this position nomination was refused and therefore is no longer available to him.  The applicant agreed he does not have a nomination approved by Edney’s Leongatha.

16. The applicant said he is aware of the decision that that was refused by the department but since then has been looking for jobs and got a job at Toyota Brighton and the Job Ready program will be finishing in 3 months and he wants the (tribunal’s) decision put on hold for 3 months.  Toyota Brighton has not sponsored him for a 457 visa.  He has full work rights now.  Asked if he has any other visa application pending the applicant said he has another employer in Tasmania which is another 187 possibility.  He could not tell the Tribunal the name of this employer.  The applicant said he was a victim of racism at his previous job and was traumatised by his fellow work mates who did not like him.  He cased work there in November 2016.  He is nearly 30 and has to sort out his life.  He wants 3 more months.  The Tribunal advised the applicant that it would not delay its decision making by 3 months as whatever additional skills and qualifications (including completing a skills assessment) he could attain in another 3 months could not materially impact the outcome of this decision.  The applicant said he is struggling in his life.

17. The applicant’s representative reiterated that the applicant is on the Job Ready Program which concludes in 10 months and 15 days and therefore he only has 40 days to complete his mandatory hours.

18. Whilst recognising that the applicant would like to complete the first stage of the Job Ready program, as discussed with the applicant at the hearing, completion of this qualification cannot in any way alter the outcome of the review.  In this respect the applicant has agreed in both his written and oral evidence that he does not satisfy cl.187.233 as the nomination made by Edney’s Leongatha was refused.  While the applicant has made allegations of discrimination and harassment by other workers, the Tribunal notes that it only has the applicant’s account of events before it and that there are other legal avenues he could pursue if he believes his dismissal was unfair or discriminatory.

19. Based on the information before it in the primary decision and confirmed by the applicant’s written and oral evidence, the Tribunal finds that the applicant is not the subject of an approved nomination.

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.

    DECISION

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

    Karen Synon
    Member