Sucha Singh (Migration)

[2018] AATA 1653

Sucha Singh (Migration) [2018] AATA 1653 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Sucha Singh
Mrs Prabhjot Kaur

CASE NUMBER:  1722283

DIBP REFERENCE(S):  BCC2016/4022910

MEMBER:Peter Emmerton

DATE:2 May 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 02 May 2018 at 1:45pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visas – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nominated position of Transport Company Manager – Tribunal affirmed nomination refusal – Decision under review affirmed

LEGISLATION
Migration Act 1958 ss 65, 359A, 359C, 360,

Migration Regulations 1994 rr 1.13A, 1.13B, 5.19 Schedule 2 cls 187.233, 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 and Border Protection 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 29 November 2016. 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, Mr Sucha Singh, is seeking the visa in the Direct Entry stream, to work in the nominated position of Transport Company Manager, ANZSCO 149413.

5. 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.

6. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the Minister did not approve the nomination.

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 nomination has been approved.

9. On 28 November 2016, the applicant’s sponsoring employer, Mr Gurbant Singh applied for approval for a nomination for the position of Transport Company Manager. Mr Sucha Singh is the nominee for the position. On 3 August 2017 the Department refused the application on the basis the nomination did not satisfy r.5.19(4)(d)(i) of the Regulations. In a separate decision, the Department refused Mr S Singh’s subclass 187 visa application because Mr G Singh’s nomination was not approved.

10. Mr G Singh and Mr S Singh applied to the Tribunal to review the department’s decisions.

11. On 13 April 2018 the Tribunal affirmed the decision of the Department refusing approval of the nomination of an appointment made by Mr G Singh for the position of Transport Company Manager, (ANZSCO 149413).[1]

    [1] AAT Migration and Refugee Division Case No. 1718770

12. On 16 April 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised him that the Tribunal had affirmed the decision of Department refusing approval of the nomination of an appointment made by Mr G Singh.

13. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the relevant nomination, he cannot satisfy the provision at clause 187.233(3) of the Migration Regulations.

14. The applicant was advised that if he cannot satisfy cl.187.233 the Tribunal would affirm the decision of the Department of Immigration and Boarder Protection refusing him the visa. As a consequence the secondary visa applicants would also be unable to satisfy cl.187.311 as members of the family unit of a person who holds a subclass 187 visa.

15. The applicant was invited to provide a written response by 30 April 2018. The letter advised the applicant that if he did not comment or respond within the period allowed or extended, the Tribunal may make a decision on the review without taking any further action.

16. At time to making this decision the applicant has not responded to the letter.

17. As the applicant has not provided the information within the prescribed period, and no extension has been sought or granted, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The Tribunal has proceeded to decision without taking any further steps to obtain the information, as it is evident the information cannot be provided.

    Nomination of a position

18. 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

19. 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.

20. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 187.233(3).

21. As a consequence the Tribunal also finds that the secondary visa applicants are unable to satisfy cl.187.311 as members of the family unit of a person who holds a subclass 187 visa.

22. Therefore, cl.187.233 is not met.

23. 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

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

    Peter Emmerton
    Member