Sukhdeep Singh (Migration)

[2022] AATA 3361

Sukhdeep Singh (Migration) [2022] AATA 3361 (4 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Sukhdeep Singh

CASE NUMBER:  1833459

HOME AFFAIRS REFERENCE(S):          BCC2017/415899

MEMBER:Ian Berry

DATE:4 August 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 04 August 2022 at 12:24pm

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 – s 359A invitation – request for extension of time ­– decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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

2. The applicant applied for the visa on 1 February 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) (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 ANZSCO 512111.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the applicant’s nomination was refused.

6. The applicant was represented in relation to the review, the representative ceased acting for applicant on 8 July 2022.

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 has an approved nomination, and the nomination has not been withdrawn, with the position continuing to be available to him.

   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 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.

    Invitation under s.359A

11. On 26 July 2022 the Tribunal wrote to the applicant under s.359A of the Act, inviting the applicant to provide information or comment, in writing, on the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review:

    ·That the applicant’s nomination application by his employer was refused on 14 June 2022.

12. The invitation was sent to the last address provided in connection with the review and advised that, if the information or comments were not provided in writing by 22 July 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement the he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments and for the Tribunal to proceed to make its decision.

13. The applicant has responded within the prescribed period after the Tribunal granted extensions requested.   The applicant’s response included a further request for an extension on 22 July 2022. The applicant’s reason for that extension is that he wished to obtain further documents relating or concerning his nominator. Extensions of time have been granted by the Tribunal. On 30 June 2022, the applicant requested an extension was granted to 8 July 2022. On 8 July 2022, the applicant made a further request for an extension was granted to 15 July 2022. On 15 July 2022, the applicant requested a further extension of time which was granted to 22 July 2022. On 22 July 2022, the applicant made a further request for an extension which was not granted as he did not provide any reason substantiating the further request for an extension other than by stating he needed time to receive further documents, without specifying the source of the documents or what documents he was seeking.

14. The applicant’s nominator Mr John P Singh and Mrs Kamaljit Singh applied for a nomination for the applicant to be an office manager. That nomination application was refused on 14 June 2022. As stated above, the applicant was advised pursuant to s.359A of his nominator’s application having been refused on 14 June 2022.

15. Therefore, cl 187.233 is not met.

16. 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

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

    Ian Berry
    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.