Singh (Migration)

[2017] AATA 2465

Singh (Migration) [2017] AATA 2465 (3 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jagjit Singh
Mrs Manpreet Kaur
Miss Kulnoor Kaur

CASE NUMBER:  1600766

DIBP REFERENCE(S):  BCC2015/1545163

MEMBER:Hugh Sanderson

DATE:3 October 2017

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 03 October 2017 at 3:24pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant manager – Minister did not approve nomination – Refusal of nomination upheld on review – No valid nomination at time of decision

LEGISLATION

Migration Act 1958, s 65, 359AA

Migration Regulations 1994, Schedule 2, cl 187.233, cl 187.311

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 29 May 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 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 cafe or restaurant manager. 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.187.223 of Schedule 2 to the Regulations because the delegate found that the nomination application of the applicant’s sponsor had been refused and therefore the applicant was not subject of an approved nomination.

   Background

6. The applicant is a citizen of India. The second named applicants are his wife and child. He applied for the Employer Nominated visa on the basis of his employment as a cafe or restaurant manager at the Cucina Italian Diner in Darwin. His employer, The Trustee for Cucina Italian Diner Bagot Road Unit Trust, applied for approval of his nomination.

7. The Department issued a decision on 19 November 2015 refusing the application for approval of the nomination of the position made by the applicant’s employer. As the application for approval of the nomination of the position had been refused the Department found the applicant did not meet the requirement in cl.187.233(3) that required that the Minister has approved the nomination. Accordingly the application was refused.

8. The applicant’s employer applied for a review of the decision to refuse the nomination application. The Tribunal, on 22 September 2017, issued a decision affirming the Department’s decision to refuse the nomination application. The applicant was advised of that decision on that day.

9. The applicants appeared before the Tribunal on 3 October 2017 to give evidence and present arguments. The applicant’s employer, Mr Falanga also attended the hearing. The applicants were represented in relation to the review by their registered migration agent.

10. The Tribunal explained to the applicant the process under s.359AA of the Act. The Tribunal explained to the applicant that it would be putting to him information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain why this information was relevant and then invite the applicant to comment on or respond to the information. The Tribunal explained that if the applicant wished more time to comment on or respond to the information he could request an adjournment.

11. The Tribunal referred to the Tribunal’s decision of 22 September 2017 to affirm the Department’s decision to refuse the nomination application of the applicant’s employer. This was relevant as it indicated that the applicant was not subject to an approved nomination and the only employer the applicant was relying upon for the grant of his visa had been refused their application to approve the nomination and was not subject to any other appeal. This would mean that the applicant would not meet the criteria for the grant of the visa.

12. The applicant acknowledged that his employer’s nomination application had been refused. He said that he had been working for his employer as a restaurant manager since the application was filed.

13. A discussion took place with the applicant’s agent where it was acknowledged that as the nomination application had been refused the applicant did not meet the criteria for the grant of the visa.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant is subject to an approved nomination.

    Nomination of a position

16. 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.

17. 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.

18. The applicant was nominated for the position of chef or restaurant manager by his employer, The Trustee for Cucina Italian Diner Bagot Road Unit Trust. The application by The Trustee for Cucina Italian Diner Bagot Road Unit Trust for approval of nomination was refused by the Department and that decision has now been affirmed by the Tribunal on review.

19. There is no information before the Tribunal that the applicant is subject of an approved nomination for the position of cafe or restaurant manager. Therefore, cl.187.233(3) is not met.

20. 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.

21. The applications of the second named visa applicants are based on being members of the family unit of a person who satisfies the primary criteria. No claims have been made that they individually meet the primary criteria for the grant of the visa. As the decision of the Department to refuse the applicant the grant of the subclass 187 Employer Nomination visa has been affirmed, the second named visa applicants are not members of the family unit of a person who holds a subclass 187 visa and therefore they do not meet the criteria in cl.187.311. Accordingly, the decision to refuse their applications must also be affirmed.

    DECISION

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

    Hugh Sanderson
    Member