Sukhwinder Singh (Migration)

[2024] AATA 4024

Sukhwinder Singh (Migration) [2024] AATA 4024 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Sukhwinder Singh

REPRESENTATIVE:  Mr Wei Xue (MARN: 0533711)

CASE NUMBER:  2409831

HOME AFFAIRS REFERENCE(S):          BCC2023/6916254

MEMBER:Alan McMurran

DATE:10 October 2024

PLACE OF DECISION:  Sydney

DECISION:       The Tribunal affirms the decision not to grant the   applicant a Skilled Employer Sponsored Regional
  (Provisional) (class PE) Skilled Employer   Sponsored Regional (Provisional) (subclass 494)   visa.

Statement made on 10 October 2024 at 9:49am

CATCHWORDS

MIGRATION – Skilled Employer Sponsored Regional (Provisional) (Class PE) visa – Subclass 494 Skilled Employer Sponsored Regional (Provisional) – Employer Sponsored stream – no nomination approved – employer withdrew nomination – decision under review affirmed    

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 65, 140, 359, 360
Migration Regulations 1994, Schedule 2, cl 494.213; r 2.75

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 29 April 2024 for review of a decision made by a delegate of the Minister for Home Affairs on 11 April 2024 to refuse to grant the visa applicant a Skilled Employer Sponsored Regional (Provisional) (Class PE) Subclass 494 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant, Mr  Sukhwinder Singh, a 36 year old citizen of India  applied for the visa on 29 November 2023. The delegate refused to grant the visa on the basis that the applicant was not the subject of an approved nomination, as the nomination identified in the application has not been approved under s 140GB of the Act. The nominator was identified as Lawson Chinese Pty Ltd (“the sponsor”).

3. The applicant was represented in relation to the review. The applicant provided a copy of the Department decision with this application for review.

4. On 12 September 2024, the Tribunal sent a letter under s 359 to the applicant, inviting him to provide information. A response was requested by 26 September 2024.

5. On 23 September 2024, the applicant’s representative requested an extension of “one month” because the applicant was “currently unfit and unable to focus on providing the additional supporting documents/information requested by the AAT office”. A supporting medical certificate dated 20 September 2024 was attached signed by a local GP which certified that the applicant “is unable to work/study from Friday 20 September 2024 to Friday 27 September 2024 inclusive due to medical condition.” The medical condition was not described and which might otherwise prevent the applicant from appearing to give evidence and make submissions and argument.

6. On 24 September 2024, the Tribunal responded. The Tribunal declined to grant the extension as requested for 1 month. The applicant was referred to the Tribunal Practice Direction which set out requirements for medical certificates and why the applicant could not attend for a hearing, either in person or by telephone. The Tribunal found that the medical certificate provided was not acceptable.

7. On 25 September 2024, the Tribunal sent the applicant a letter under s 359A of the Act advising that Department information disclosed that the nominator, Lawson Chinese Pty Ltd, had withdrawn its application for review in the Tribunal on 12 June 2024 in Tribunal case number 2405798.

8. The applicant was invited to respond by 9 October 2024. The letter advised the applicant that if the Tribunal did not receive a response by the due date, the applicant will lose any entitlement he might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

9. The applicant did not respond by the due date or at all.

10. As the applicant has failed to respond, s 360(2)(c) and s 360(3) of the Act apply, and the applicant is no longer entitled to appear before the Tribunal to give evidence and present argument. The Tribunal therefore did not invite the applicant to a hearing.

11. The Tribunal has proceeded to determine this review on the available information at the time of its decision and without a hearing or taking any further steps to obtain information..

12. The applicant was represented in relation to the review.

13. The representative has not contacted the Tribunal and no further adjournment or extension has been requested or considered.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant has an approved nomination by his sponsor, Lawson Chinese Pty Ltd.  

16. Where the applicant applies for a Subclass 494 visa in the Employer Sponsored stream, the criteria in Subdivisions 494.21 and 494.22 are the primary criteria for the grant of the visa, which include common criteria as well as criteria for the stream applied for by the applicant.

17. The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. All criteria must be satisfied at the time a decision is made on the application. The Tribunal has no discretion to waive any of the mandatory requirements.

18. Clause 494.213 of Schedule 2 to the Regulations as applicable in this case sets out that:

    (1) Each of the following applies:

    (a)  the nomination identified in the application has been approved under section 140GB of the Act;

    (b)  the person who made the nomination was an approved work sponsor at the time the nomination was approved;

    (c) the approval of the nomination has not ceased under regulation 2.75B.

    (2) Both of the following apply:

    (a) the applicant’s intention to perform the nominated occupation is genuine;
        (b) the position associated with the nominated occupation is genuine.

19. Tribunal records provide that an application for review lodged by the sponsor on 22 March 2024 was withdrawn on 12 June 2024, without a hearing. The Tribunal informed the applicant by letter of that information as set out above. The Tribunal found accordingly that it had no jurisdiction to consider the review by the sponsor any further.

20. The Tribunal has no information before it that the applicant is the subject of any further sponsorship application and no further request for adjournment or deferral of this review has been made. The Tribunal is mindful of its obligation under s2A of the Administrative Appeals Tribunal Act 1975,  to provide a mechanism of review that is fair, just, economical, informal and quick.

21. The Tribunal finds in this instance that there is no nomination identified in the visa application which has been approved under s 140GB of the Act in favour of the applicant. The Tribunal has considered whether there should be an adjournment in favour of the applicant. The Tribunal has decided that no further adjournment is warranted in circumstances where the applicant cannot meet the sponsorship requirement.

22. The Tribunal finds therefore that cl 494.213 is not met and the Department decision must be affirmed.

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a Skilled Employer Sponsored Regional (Provisional) (class PE) Skilled Employer Sponsored Regional (Provisional) (subclass 494) visa.

    Alan McMurran
    Member