Singh (Migration)

[2022] AATA 3600

Singh (Migration) [2022] AATA 3600 (19 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navpreet Singh

CASE NUMBER:  1916643

HOME AFFAIRS REFERENCE(S):          BCC2017/4384555

MEMBER:Alison Mercer

DATE:19 October 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 19 October 2022 at 5:15pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – motor mechanic – subject of approved position nomination – refusal of related nomination application affirmed on review – legislative amendments mean requirements cannot be satisfied by new nomination – request for extension of time made after prescribed period passed – decision made on available evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 360(3)

Migration Regulations 1994 (Cth), Schedule 1, para 1114B(3)(d), Schedule 2, cl 186.223(2)

CASES

Hasan v MIBP [2016] FCCA 1049

Hasran v MIAC (2010) 183 FCR 413

Kaur v MIBP [2017] FCCA 564

MIAC v Li (2013) 249 CLR 332

Singh v MIBP [2017] FCAFC 105

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 21 November 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 Motor Mechanic (General).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, which required that he was the subject of an approved nomination by his Australian employer. The delegate found that the nomination of the applicant by his employer, R I K Group Pty Ltd, had been rejected by the Department on 2 May 2019. The delegate therefore found that the applicant did not meet the criteria for a subclass 187 visa in the Direct Entry stream and had not made any claims to meet any other stream.

6. The Tribunal received a review application from the applicant on 26 June 2019. It was accompanied by a copy of the delegate’s decision.  The applicant also provided a reference letter from his employer of the same date, and a copy of his Certificate IV in Automotive Mechanics and a copy of his English test results from 11 September 2017.

7. On 7 September 2022, the Tribunal wrote to the applicant to invite him to a hearing to be conducted by telephone on 6 October 2022.

8. On 13 September 2022, the Tribunal wrote to the applicant to invite him, pursuant to s.359A of the Act, to comment on or respond to information held by the Tribunal that was potentially adverse to his case. Specifically, the Tribunal noted that:

   ·at the time the applicant made his visa application on 21 November 2017, he was nominated by his employer, R I K Group Pty Ltd, as a Motor Mechanic (General);

   ·the Department rejected his application on 8 June 2019 because the delegate found that he did not meet cl.187.233 of Schedule 2 to the Migration Regulations as he was not the subject of an approved nomination at the time of the delegate’s decision. The delegate’s findings were made on the basis that the applicant’s employer’s nomination of him for the occupation of Motor Mechanic General had been rejected by the Department on 2 May 2019;

   • the Tribunal’s records indicate that R I K Group Pty Ltd lodged an application for review of the decision to refuse the nomination but that on 22 June 2022, the Tribunal affirmed the Department’s decision to refuse that decision; and
   • accordingly, there was currently no approved nomination of the applicant by R I K Group Pty Ltd and the decision to refuse the nomination was not under review by the Tribunal.

9. The Tribunal advised the applicant that this information was relevant to the review because, subject to his comments or response, it indicated that:

   • he was not the subject of an approved appointment made by the same employer who nominated him, as required by cl.187.233 and this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it was a requirement that the primary applicant met cl.187.233 at the time of decision; and
   • there was no evidence that he met the criteria in the Temporary Residence Transition or Labour Agreement streams of the subclass 187 visa.

10. The Tribunal requested that the applicant provide his comments or response by 27 September 2022 (or seek an extension of time to do so by that date), noting that otherwise he would lose his entitlement to a Tribunal hearing, the hearing of 6 October 2022 would be cancelled, and the Tribunal might proceed to make its decision without taking further steps to obtain his views on the information.

11. The Tribunal did not receive a response, or a request for an extension of time to provide one, by 27 September 2022.  The Tribunal is satisfied that its letter of 13 September 2022 was sent to the email address nominated for correspondence by the applicant in his review application. There is no indication from the Tribunal’s electronic records that it was undelivered or undeliverable.

12. The Tribunal notes that it has no power to extend the period to respond to an invitation when a request for an extension is received after the initial prescribed period has passed: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 at [48]. As above, no extension request was received in the prescribed period. Nor did the applicant provide comments or a response to the information in the Tribunal’s letter in the prescribed period. Accordingly, the applicant has lost his entitlement to have a hearing: s.360(3).

13. On 28 September 2022, the Tribunal wrote to the applicant to advise him that he had lost his entitlement to a hearing but inviting him to provide any further information he wished to have considered by 6 October 2022.

14. On 4 October 2022, the Tribunal received an email from the applicant as follows:

    …

    In regards to the subject matter mentioned above, I request you to please extend my hearing by a month as I am awaiting certain documents from my agent pertaining to the application.

    I request you to please extend the hearing till 06 November 2022.

    …

15. On 5 October 2022, the Tribunal wrote to the applicant advising that:

    …

    As stated in the Tribunals correspondence dated 28 September 2022 you have lost your right to a hearing. The Tribunal will now make a decision on the papers.

    You have been given until 6 October 2022 to provide additional information. If you cannot do so by that date, you should advise the Tribunal what information you intend to provide and when it will be provided. The Presiding Member will then decide whether or not to defer making a decision for a period beyond 6 October 2022.

    …

16. The Tribunal did not receive any further response or documents from the applicant by 6 October 2022, and has received no further communication from him to date.

17. The Tribunal has considered whether to make any further request for comments or a response from the applicant, but – in view of the lack of response by the due date, the confined nature of the criterion in dispute, and the fact that the applicant was given until 6 October 2022 to provide any additional information but has not done so or explained what further information he intended to provide - the Tribunal has elected not to do so and instead has proceeded to make its decision on the available evidence. It considers that it is reasonable to do so in the circumstances of the case, and having regard to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

19. 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.

20. 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.

21. It is not disputed that although the applicant was nominated by his Australian employer, R I K Group Pty Ltd, for a subclass 187 visa, the nomination by his employer was refused by the Department on 2 May 2019, and that refusal decision was affirmed by the Tribunal (differently constituted) on 22 June 2022. This means that it is no longer under review by the Tribunal and the Department refusal decision still stands.

22. Accordingly, the Tribunal finds that the applicant is not the subject of an approved nomination by R I K Group Pty Ltd and thus cannot satisfy cl.187.233(3). He therefore cannot meet cl.187.233 as a whole.

23. There is no evidence that the applicant is the subject of an approved nomination by another employer, and even if he were, the Tribunal’s view is that this would not satisfy cl.187.233. This was the view taken in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105. The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the 'position' referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.

24. The Tribunal considers that, although the Court's comments were strictly obiter, they are nonetheless persuasive in relation to subclass 186 and 187 visas. As the relevant subclass 186 criteria are in the same terms, the Court's reasoning is also applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is withdrawn or refused on review, the visa applicant will not meet cl.186.223, cl.186.233, cl.187.223 or cl.187.233 (as applicable).

25. Moreover, this view is consistent with the view taken in another decision, Kaur v Minister for Immigration and Border Protection [2017] FCCA 564, in which the Court cited with approval the previous case of Hasan v Minister for Border Protection [2016] FCCA 1049, to the effect that the nomination relied upon to satisfy cl.187.233 must be the one which had been made at the time of the visa application and could not be a later nomination, even if the later nomination were made by the same employer in relation to the same position as the nomination made at the time of the visa application.

26. In addition, the Tribunal notes that legislative changes took place on 18 March 2018 which also affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version. While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.187.233 in relation to a subclass 187 visa application made prior to 18 March 2018, as is the case here.

27. Therefore, the Tribunal must find that cl.187.233 is not met, and that the applicant cannot be granted a subclass 187 visa in the DE stream. The applicant has only sought to satisfy the criteria for a subclass 187 visa in the DE 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 DE stream have not been met, the decision under review in relation to the applicant must be affirmed.

    decision

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

    Alison Mercer
    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.