Sukhwinder Singh (Migration)

[2020] AATA 4622

Sukhwinder Singh (Migration) [2020] AATA 4622 (25 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Sukhwinder Singh
Mrs Manjit Kaur

CASE NUMBER:  1825738

HOME AFFAIRS REFERENCE(S):          BCC2016/4135958

MEMBER:Andrew McLean Williams

DATE:25 August 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 25 August 2020 at 4:37pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.13; 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 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 7 December 2016. At the time of application, Class RN contained only 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 the Direct Entry stream. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, because the nomination lodged by JG.DG Pty Ltd - being the nomination referred to in paragraph 187.233(1) in the case of the applicant – had been refused by a delegate of the Minister on 3 August 2018. JG.DG Pty Ltd did make an application for review of that decision before the Tribunal on 14 August 2018 yet, on 14 July 2020, the Tribunal determined that it did not have any jurisdiction to consider that application for review. In the result of that Tribunal decision, the decision of the delegate refusing the nomination by JG.DG Pty Ltd as was made on 3 August 2016 remains extant.

5. On 10 August 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act, identifying the fact that the applicant was unable to meet the requirements of r.187.233(3), by reason that the decision of the delegate made on 3 August 2018 refusing the nomination by JD.DG Pty Ltd had not been subsequently disturbed by the Tribunal.  The applicant was invited to comment, in writing, by no later than 24 August 2020. 

6. As at the date of these reasons for decision the applicant has not provided any response to the Tribunal letter dated 10 August 2020.

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 is able to meet the requirements of r. 187.233.

   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. On 3 August 2018 a delegate of the Minister refused the nomination application made by JG.DG Pty Ltd.  This was the nomination referred to in r.187.233(1) in the case of the applicant.  That refusal decision has not been disturbed by a contrary decision of the Tribunal made after 3 August 2018.  In the result, the decision made by the delegate on 3 August 2018 remains extant, and the applicant is unable to meet the requirement of r.187.233(3).

12. Therefore, cl.187.233 is not met.

13. 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

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

    Andrew McLean Williams
    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.