Sunil Kumar (Migration)

[2023] AATA 722

Sunil Kumar (Migration) [2023] AATA 722 (5 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Sunil Kumar

REPRESENTATIVE:  Mr Dhaval Rajendra Mandan (MARN: 1797268)

CASE NUMBER:  1922771

HOME AFFAIRS REFERENCE(S):          BCC2018/265297

MEMBER:Alan McMurran

DATE:5 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 05 January 2023 at 2:21pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Transport Company Manager – request for deferral declined – subject of an approved nomination – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
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 lodged 15 August 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 29 July 2019 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Mr Sunil Kumar, a 28-year-old citizen of the Republic of India, applied for the visa on 16 January 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 (Cth) (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Transport Company Manager (ANZSCO 149413).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations, because the nomination by VA Logistics Pty Ltd ATF Kapoor Family Trust (“the nominator”) was not approved, the nomination application being refused by the Minister’s delegate on 16 May 2019, which meant that the visa application could not be granted.

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

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

   Background

8. On 16 September 2022 the Tribunal sent an invitation to the applicant to comment or respond to information, particulars of which were provided that on 19 July 2020 the Tribunal had affirmed the decision to refuse the nomination by the nominator, and that there was no approved nomination. The applicant was invited to respond by 30 September 2022, or to seek an extension of time if that were required in order to respond. He was informed that if he failed to do so, he would lose the entitlement he might otherwise have under the Act to appear to give evidence and present arguments. [1]

   [1] S.360(3) applies

9. The applicant did not respond to the letter, and on 10 October 2022, the Tribunal wrote to the applicant’s representative advising that as no comment or response as requested had been received, the Tribunal may make a decision on the review without taking any further action to obtain information. The Tribunal further advised the applicant that as there had been no response, a hearing pre-arranged for 20 October 2022 was cancelled in accordance with the requirements of the Act.

10. The applicant’s representative responded to the Tribunal’s email with a request to consider a late submission. He attached the following from the applicant [unedited]:

    “10/10/2022 RE: Request to consider late submission Case Number: 1922771

    Dear Officer,

    I am writing this letter to request consider my case. I would like to provide you oral evidence during my hearing. The reason I could not provide any written response to you earlier was because I was sick with covid. This is for the fifth time I have contracted covid this year. I have not provided you with any medical certificate because no doctor would see me. I was told by my doctor to stay at home and quarantine myself.

    I have spent 2 days just sleeping. I was so weak that I did not have any emery to comply wit the AAT’s hearing.

    I would like to request the member to kindly allow me to attend my hearing on 20/10/2022 so that I can give evidence to support myself and my life in Australia. I can provide a photo of the RAT test In undertook but other than this I do not have anything to show that I was genuinely sick and therefore I could not provide the requested information by the Tribunal and the respected member. Please accept my apologies. Sincerely, Sunil Kumar”

11. On 11 October 2022, a Tribunal officer recorded the following case note:

    “Applicant was called at around 11:33am regarding his request to reinstate the hearing scheduled for 20 October 2022. He explained the contents of his letter (doc id: 10319759). I advised him that the Member cannot reinstate the hearing but will continue to accept and consider written submissions provided before 20 October 2022. The applicant requested that this information be sent as a copy to his rep - email was sent (doc id: 10320940).”

    12.On 19 October 2022, at 23:28 pm, the applicant sent an email to the Tribunal as follows [unedited]:

    “19/10/2022 Case Number: 1922771

    Dear officer, I am writing this letter to support my review application lodged with the Administrative Appeals Tribunal. Further to our discussion on the phone I wish to notify the AAT of my following circumstances and make the following prayer.
    I have recently moved to Western Australia on the advice of a Registered Migration Agent. I have been advised that my prospects for getting subclass 491 visa is very high. I have also commenced obtained a positive skills assessment from vetassess for transport company manager. I am sure of the fact that I will be successful in obtaining a positive outcome.
    I would like the AAT to kindly not give decision on my appeal for another 6 weeks so that I can finalize my visa. Please let me know if you need any further information.
    Thanking you,
    Sunil kumar

12. On 20 October 2022, the Tribunal provided the applicant’s representative by email the following response:

    “Dear Mr Mandan,
    I am writing in relation to your request dated 19 October 2022 requesting the member's decision be delayed.
    The presiding member has considered this request and will not delay making a decision.
    The applicant has had since 16 September 2022 to provide information to the Tribunal and has failed to do so. In these circumstances the request is declined and decision will be made.”

13. Following those exchanges between the applicant and the Tribunal, the Tribunal has proceeded to consider the available information for its decision. The Tribunal has waited for a considerable period since the adjournment request was refused to complete the matter but has heard nothing further from the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant is the subject of an approved nomination for the nominated occupation.

15. The Tribunal has available for consideration the applicant’s visa history from the Department file and from the nominator’s file with the Tribunal. The Tribunal has had regard to the Act and the Regulations, together with the requirements of the Administrative Appeals Tribunal Act, 1975, at s 2A, and which requires the Tribunal in carrying out its functions to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick as well as proportionate to the importance and complexity of the particular matter.

16. The issue in this particular case is quite straightforward and the Tribunal has no discretion to waive or avoid the requirements of the legislation.

    Nomination of a position

17. 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.

18. 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.

    No nomination

19. The Tribunal finds that on 19 July 2020, the Tribunal made a decision on review to affirm the nomination decision made by the Department on 16 May 2019. There is no information that the Tribunal decision is the subject of an appeal pending through the Courts. The Tribunal finds therefore that there is no nomination which the Minister has approved and which relates to the visa applicant.

    Further Deferral request

20. The Tribunal considered the applicant’s request for a deferral of the decision. The Tribunal finds it had extended an opportunity to the applicant to provide information, effectively from 1 October 2022, and waited up until January 2023 to finalise the review. The Tribunal is satisfied that the applicant had been informed he could provide whatever information he saw fit in response to the Tribunal’s earlier request of 16 September 2022, and to support a deferral request up until the cancelled hearing date of 20 October 2022.

21. The Tribunal is also mindful of the fact that following its review, on 19 July 2020, when the Tribunal had affirmed the Department’s decision refusing the nomination, more than 2 years have elapsed since that outcome.

22. The Tribunal finds that the applicant’s email to the Tribunal on 19 October 2022 did not provide any relevant information, such as any details of any outstanding application lodged for a visa, or any details or particulars which the Tribunal might consider in support of the request to defer its decision “for another six weeks”. There was no history provided of the applicant’s move to Western Australia, any response from an agent on his behalf about any new visa application, his present circumstances, or past relevant medical history, or any likely timeline for a new substantive visa outcome.

23. In short, there was simply no substantive and objective information to assist the Tribunal in consideration of any further deferral, or to delay the decision-making process further, and without any other communications from the applicant to update the Tribunal. Consequently, the Tribunal has decided to complete the review without making any further attempt to obtain information and without any request for any further extension.

    Summary

24. The Tribunal finds that that cl. 187.233 (3) is not met.

25. For these reasons, the Tribunal finds that the applicant does not satisfy the primary criteria for a Subclass 187 visa in the Direct Entry stream and that cl.187.233 is not met.

    Conclusion

26. 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

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

    Alan McMurran
    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.