Singh (Migration)

[2022] AATA 4205

Singh (Migration) [2022] AATA 4205 (26 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tejinderjit Singh

REPRESENTATIVE:  Mr Harjeet Singh (MARN: 0958569)

CASE NUMBER:  1912929

HOME AFFAIRS REFERENCE(S):          BCC2017/2338833

MEMBER:Penelope Hunter

DATE:26 October 2022

PLACE OF DECISION:  Sydney

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

Statement made on 26 October 2022 at 5:06pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Café or Restaurant Manager – no approved nomination – sponsor deregistered – referral for Ministerial Intervention – Family Court orders concerning Australian citizen child – best interest of the child – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

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 30 June 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 Café or Restaurant 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 because the related nomination of the applicant’s nominating employer, The Silverback Café Buderim Pty Ltd, had not been approved. A copy of the delegate’s decision record has been submitted to the Tribunal, and the applicant was represented in relation to the review.

6. On 8 September 2022, the applicant was invited to appear at a hearing before the Tribunal on 24 October 2022, to give evidence and present arguments.

7. On 10 October 2022, the Tribunal wrote to the applicant pursuant to the provisions of s 359A of the Act inviting him to provide comment on information that it considered would be a reason or a part of the reason for affirming the decision under review. The relevant information was that the Tribunal had obtained information from the Australian Securities and Investment Commission (ASIC) that the company, The Silverback Café Buderim Pty Ltd, had been deregistered on 28 September 2019. Subsequently, on 4 April 2009, the Tribunal had dismissed the application for review of the refusal of the nomination lodged by The Silverback Café Buderim Pty Ltd. The Tribunal explained the relevance of the information and informed the applicant if it relied on the information that it may find that the relevant nomination had not been approved and that the position with the nominated employer was not still available to the applicant. Consequently, the applicant would not be able to satisfy cl 187.233(3) and cl 187.233(5) of Schedule 2 to the Regulations and this would be a reason or a part of the reason for affirming the decision under review. The applicant was invited to provide his comment or response on the hearing date, 24 October 2022.

8. On 24 October 2022,  the applicant provided lengthy submissions to the Tribunal and requested that the Tribunal make a decision on the papers. The Tribunal registry subsequently confirmed with the applicant that he consented to the Tribunal making a decision on the review without him appearing before it.

9. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant satisfies cl 187.233 of Schedule 2 to the Regulations.

    Nomination of a position

11. 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.

12. 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.

13. The applicant has applied for the visa under review on the basis of a nomination in the position of Café or Restaurant Manager by The Silverback Café Buderim Pty Ltd. As set out in the decision record of the delegate, this nomination was refused by a delegate, on behalf of the Minister, on 13 March 2019. The submissions provided by the applicant ‘s representative acknowledge this refusal.

14. Although The Silverback Café Buderim Pty Ltd sought a review of this decision, as set out in the invitation to comment sent to the applicant on 10 October 2022, ASIC records confirm that the company was deregistered on 28 September 2019. That means it has ceased to exist. Furthermore, on 4 April 2022, the review application lodged by The Silverback Café Buderim Pty Ltd was dismissed. The applicant has not provided in his submissions to the Tribunal any evidence to dispute this. His agents submissions acknowledge that they have been instructed that the nominated employer is not available to the applicant and he is no longer working for the nominator but a different company, JK Jindal Pty Ltd.

15. The Tribunal finds that the relevant nomination has not been approved. It therefore follows that the applicant does not meet cl 187.233(3) of Schedule 2 to the Regulations.

16. Although it is not necessary for the Tribunal to make further findings, it is also apparent on the material before it the applicant is not working for the nominator and as the company has been deregistered since 28 September 2019 could not work for them. It follows that the Tribunal is not satisfied that the position would still be available to the applicant and he also does not met cl 187.233(5) of Schedule 2 to the Regulations.

17. Therefore, cl 187.233 of Schedule 2 to the Regulations 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.

    Ministerial intervention request

19. The considerable submissions provided by the applicant and his representative contained a request that the matter be brough to the attention of Minister for intervention pursuant to s 351 of the Act.

20. This section confers upon the Minister a non-compellable personal discretion to grant a person a visa after their review application with the Tribunal is unsuccessful. The current guidelines for Ministerial Intervention are set out on the Department’s website.[1]

    [1] Ministerial intervention (homeaffairs.gov.au)

21. The submission before the Tribunal is that the matter is appropriate for referral to Minister for the following reasons:

    ·    Strong, compassionate circumstances that, if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or Australian permanent resident.

    ·    Compassionate circumstances regarding the applicant’s health and psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship if the applicant has to depart Australia, he could potentially not be able to return for years.

    ·    The separation of the applicant from his child wouldl contradict the paramount principle of ‘Best interest of the child’ as ratified in the Convention on the Rights of the Child.

22. On the material presented the that the applicant is the father of an Australian citizen child, Japnoor Singh, aged 14. There are Family Court orders in place  between the applicant and his ex-wife that Japnoor Singh reside with the applicant for several days each week and half school holidays. Evidence has been submitted to substantiate the claim that the applicant is actively involved in all activities of Japnoor Singh while he is in his care, including transporting him to and from school, sporting and social activities. Further, the applicant also attends to the financial support of Japnoor Singh. It would appear that the applicant and his son share a close emotional bond, and the applicant provides considerable financial support.

23. The Tribunal further accepts that the deregistration of the nominator was a circumstance beyond the control of the applicant. He has provided records of his income while awaiting review and it is clear he has been gainfully employed, able to support himself and his Australian citizen child. The applicant is working in the hospitality sector in which there are current shortages and he has an employer willing to sponsor him for a further visa. From the references provided it would also appear that the applicant is well respected amongst his peers and the community.

24. In addition to submissions the applicant has provided the following supporting documents:

    • Queensland birth certificate for Japnoor Singh, born 21 February 2008.
    • Orders of the Family Court of NSW dated 30 October 2015, in respect of Japnoor Singh.
    • Bank account statements for the applicant.
    • Joint health insurance statement for the applicant and Japnoor Singh.
    • Lease agreement for the applicant and Japnoor Singh.
    • Evidence of the school enrolment for Japnoor Singh
    • Evidence of payment of school fees by the applicant for Japnoor Singh.
    • Invoices for payment of activities such as tennis, gym fees and
    • Invoices for phone contracts for the applicant and Japnoor Singh.
    • Receipts for the purchase of items for Japnoor Singh, including a computer, school clothes, school supplies and birthday celebrations,
    • Various photographs of the applicant and Japnoor Singh.
    • ATO Notices of Assessment for the applicant for the years ending 30 June 2010 to 2021.
    • Acknowledgment of a subclass 494 visa lodged by the applicant with the Department on 24 March 2022.
    • Swimclub timetable for Japnoor Singh.
    • Reference letter for the applicant by Gurpreet Singh Bhamrah dated
    • Reference letter for the applicant by Parnam Singh Heir
    • Reference letter for the applicant by Surinder Singh, General Secretary, Brisbane Sikh Tempe (Gurdwara) Inc.

25. Having regard to the mater before it, the Tribunal considers that it is appropriate to bring this matter to the attention of the Minister, particularly with regard to the circumstances of the applicant’s Australian-born child, and the consequences for this Australian child were he required to depart Australia. The Tribunal will also forward a copy of the applicant’s submissions for consideration.

    decision

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

    Penelope Hunter
    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

    (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.