Sood (Migration)

[2020] AATA 3475

Sood (Migration) [2020] AATA 3475 (6 July 2020)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kirti Sood
Mr Harwinder Singh

CASE NUMBER:  1834249

DIBP REFERENCE(S):  BCC2018/1008432

MEMBER:De-Anne Kelly

DATE OF DECISION:  6 July 2020

DATE CORRIGENDUM

SIGNED:8 July 2020

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

1.The header on the top of each page (that being pages 1 to 5), which states “Version of draft decision reviewed by Legal Services – Legal – In – Confidence” should be removed.

Statement made on 08 July 2020 at 4.39pm

De-Anne Kelly
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kirti Sood
Mr Harwinder Singh

CASE NUMBER:  1834249

HOME AFFAIRS REFERENCE(S):          BCC2018/1008432

MEMBER:De-Anne Kelly

DATE:6 July 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 06 July 2020 at 11:38am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – no approved nomination – nomination application withdrawn – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

CASES

Singh v Minister for Home Affairs [2019] FCA 723

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

2. The applicants applied for the visas on 2 March 2018. 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in a nominated position.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(4) of Schedule 2 to the Regulations because the nomination lodged by National Park Pty Ltd being the nomination referred in cl.187.233(1) was withdrawn by a delegate of the then, Minister for Immigration and Border Protection. The employer nomination was withdrawn before it could be approved or rejected.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets cl.187.233(3) which provides as follows;

   (3)      The Minister has approved the nomination.

   Nomination of a position

9. 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.

10. 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.

11. Before the Department could assess the employer nomination the delegate of the Minister withdrew the employer nomination and thereafter refused the visa application under cl.187.233(4). After the delegate of the Minister withdrew the employer nomination, the applicants lodged a review application of the refusal of their visa application with the Tribunal on 21 November 2018.

12. The applicant included with the review application the Notification of refusal of application for an Employer Nomination and also the Notice of Decision detailing the reason for the refusal of the visa application being the withdrawal of the employer nomination application.

13. On 10 June 2020 the Tribunal sent to Mrs Kirti Sood and Mr Harwinder Singh, through their registered migration agent an invitation to attend a telephone hearing on 24 June 2020.

14. On the 19 June the Tribunal received a request that the hearing be postponed, and some medical certificates were provided. The Tribunal considered these carefully but declined the request because while the certificates stated the applicant was unable to continue her usual occupation for the period 18 to 23 June, it did not state that she was unable to attend a telephone hearing. The Tribunal was mindful of the Judge’s comments in Singh v Minister for Home Affairs [2019] FCA 723 (23 May 2019) [5].

    The medical certificate is dated 21 March 2016 and refers to the applicant receiving ‘medical treatment’ (the nature of which is unspecified) and being unfit to continue his usual occupation / study. There is nothing in that document indicating the applicant was unfit to appear before the Tribunal and give evidence. The Tribunal hearing does not require the applicant to engage in his usual occupation or study.

15. On the 21 June 2020, the Tribunal received a response to the hearing invitation in which the applicant and the secondary applicant indicated in writing that they would not be attending the hearing and that the Tribunal could make a decision on the papers without taking further steps to allow them to appear. The Tribunal believes it is reasonable to move to making a decision on this matter under s.360(2)(b) of the Migration Act.

16. Since the delegate of the Minister withdrew the employer nomination application and the applicants were aware at the time, they applied for the review application that there that there was no possibility of their visa application being approved it is reasonable that the Tribunal make a decision without seeking further information from the applicant. The Tribunal considers that if the employer nomination had been approved and then subsequently withdrawn the review application would not meet cl.187.233(4). In this case the employer nomination was never approved but rather withdrawn. Therefore, there is no approved employer nomination to satisfy cl.187.233(3) and the visa applicant therefore does not meet cl.187.233(3).

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.

19. Mr Harwinder Singh was a secondary applicant who made a combined application with the primary applicant for a Regional Employer Nomination (Permanent) (Class RN) (subclass 187) (Regional Sponsored Migration Scheme) visa and sought to satisfy cl. 187.311 of Schedule 2 to the Migration Regulations 1994. On the 15 November 2018, a delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.187.311. The secondary applicant lodged an application with the Tribunal to review the decision to refuse the visa application. This clause provides as follows;

    187.311
    The applicant:

    (a)is a member of the family unit of a person (the primary applicant) who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b)made a combined application with the primary applicant.

20. Mr Harwinder Singh as the secondary applicant, applied as the spouse and therefore as a member of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Employer Nomination (Permanent) (Class RN) (subclass 187) (Regional Sponsored Migration Scheme) visa. Therefore, the primary applicant is not a person who holds a Subclass 187 visa and the secondary applicant is a member of the family unit of a person, the primary applicant, who does not hold a Subclass 187 visa. The secondary applicant therefore does not satisfy cl 187.311(a) and do not satisfy cl.187.311.

21. The secondary applicant does not meet cl.187.311 and the Tribunal affirms the decision not to grant Mr Harwinder Singh a Subclass 187 visa.

    decision

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

    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.