Singh (Migration)

[2022] AATA 4811

Singh (Migration) [2022] AATA 4811 (18 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpreet Singh

REPRESENTATIVE:  Ms Suzanne Weel

CASE NUMBER:  1919482

HOME AFFAIRS REFERENCE(S):          BCC2017/3101448

MEMBER:De-Anne Kelly

DATE:18 November 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 18 November 2022 at 9:52am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Office Manager – subject of an approved nomination – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 August 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 (Cth) (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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Office Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations the employer nomination by Queensland Fabrication & Engineering Pty Ltd was refused being the application referred to in cl.187.233(1).

6. The applicant appeared before the Tribunal on 2 November 2022 to give evidence and present arguments.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant satisfies cl.187.233(3) which provides as follows.

   (3) The Minister has approved the nomination

   Nomination of a position

10. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. 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 reg 1.13A and reg 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.

12. The Tribunal advised the applicant under s359AA of the Migration Act (Cwth) 1958 that on 8 February 2022 it found that it did not have jurisdiction to review the employer nomination refusal review because the company was de-registered on 17 January 2021. As such there is no approved employer nomination to satisfy cl.187.233(3).

13. The applicant responded in the hearing and advised that the agent no longer represents him, and he would like an adjournment of the review for a month. The Tribunal agreed to allow him a further 14 days to make submissions.  

14. On 16 November 2022 the applicant advised that he had consulted lawyers but was not satisfied with their response and requested a further 14-day adjournment. The Tribunal notes that the review application was lodged in July 2019 or over three years ago and at the time the applicant had engaged the services of a registered migration agent so he has had adequate time to obtain professional advice from this agent or any other agent of his choosing.

15. In the request for an adjournment, the Tribunal is guided by Minister for Immigration and Citizenship v Li [2013] HCA where their Honours found it warranted where a specific document which was material to the decision under review was forthcoming. That is not the case here. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs and Manna v Minister for Immigration and Citizenship where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

16. The Tribunal finds there is no approved employer nomination.

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.

    De-Anne Kelly
    Member

    
    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)in relation to which the declaration mentioned in paragraph 1114C (3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.