Suraj (Migration)

[2021] AATA 3710

Suraj (Migration) [2021] AATA 3710 (16 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rupinder Singh Suraj

CASE NUMBER:  1900932

HOME AFFAIRS REFERENCE(S):          BCC2018/964783

MEMBER:Susan Trotter

DATE:16 July 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 16 July 2021 at 8:28am

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

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 65, 363
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Nawsabreen v MICMSMA [2021] FCCA 83
Singh v MIBP [2017] FCAFC 105

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

2. The applicant applied for the visa on 28 February 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 Corporate Services Manager for Raf Partners Pty Ltd (the nominator), the applicant for approval of a nomination in relation to the nominated position.

5. The delegate refused to grant the visa on the basis that cl.187.233(3) of Schedule 2 to the Regulations was not met because the associated nomination had not been approved as required for a visa in the Direct Entry stream. Further, the delegate found that no claims were made in the other streams, the Temporary Residence Transition stream or the Agreement stream and that there was no nomination for a different stream supporting the visa application.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 15 January 2019 and provided the Tribunal with a copy of the delegate’s decision.

7. The applicant appeared before the Tribunal on 11 March 2021 to give evidence and present arguments. At hearing, the Tribunal discussed with the applicant that the outcome of his application to the Tribunal was dependent upon the outcome of the nominator’s application for review to the Tribunal in relation to the refused nomination application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

   Nomination of a position

10. Clause 187.233, as applicable in this case, is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an approved nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application.

11. In addition, this criterion also requires that:

    (a)the person who will employ the applicant is the person who made the nomination;

    (b)the nomination has been approved and has not been subsequently withdrawn;

    (c)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 of the Regulations); or it is reasonable to disregard any such information;

    (d)the position is still available to the applicant; and

    (e)the visa application was made no more than six months after the nomination of the position was approved.

12. On 30 June 2021, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting the applicant to comment on or respond to certain information before it. The information included that on 24 June 2021, the Tribunal affirmed the decision to refuse the nominator’s application such that there is no approved nomination in relation to the nominated position to be undertaken by the applicant as required.

13. On 12 July 2021, the applicant responded to the Tribunal’s 30 June 2021 invitation as follows (unedited):

    … I wish to make the following comments in reply:-

    -It is my understanding that you have affirmed the decision to refuse the nomination related to my visa application.

    -It is my view that I am an exceptional candidate that possess both formal qualification and proven work experience to address the needs of my nominator. Further, my nominator is a business located in regional NSW that has long suffered from the setbacks associated with a lack of suitably qualified staff available from the local labour market. My nominator has the support of the regional board of development and the local council with respect to their commitment to employment and economic activity in their region.

    -Whilst it is not common practice, I wish to sincerely request that you postpone or hold decided to affirm the decision to refuse my visa so my nominator applying to the Federal Court and may seek approval of a fresh nomination related to my sponsorship. I believe the demonstrated support for my nominator from with his local community should assist in receiving an approval.

    -Your support and discretion in this matter would make all the difference to both my livelihood and that of my sponsor and the many employees who rely on him for continued employment.

14. The Tribunal considered whether it would be appropriate, as requested by the applicant, to adjourn the application for review generally under s.363(1)(b) of the Act.

15. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

16. As canvassed in the Tribunal’s 30 June 2021 invitation to the applicant, a necessary primary criterion for the visa, an approved nomination, is not met. The Tribunal has a statutory objective to provide a mechanism of review that is ‘fair, just, economical, informal and quick’ (s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth)).

17. The Tribunal notes the applicant’s request to postpone or hold the decision to affirm the decision, pending the nominator appealing the nomination refusal or seeking approval of a new nomination.

18. The Tribunal has also taken into account the applicant’s request for support and discretion including because of his formal qualifications and proven work experience to work for the nominator, the setbacks associated with a lack of suitably qualified staff available from the local labour market in regional New South Wales for the nominator’s business, the support of the regional board of development, the local council and the local community for the nominator with respect to their commitment to employment and economic activity in the region. The Tribunal acknowledges all of those matters, however, the only issue before the Tribunal upon review in relation to this application is whether there is an approved nomination.

19. The Tribunal has also considered the case of Singh v MIBP [2017] FCAFC 105 (Singh), where Mortimer J (Bromberg and Jagot JJ agreeing) considered the provision of cl.187.233 of the Regulations in relation to the requirement to have an approved nomination and stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg. 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.. An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).

20. As noted in the Tribunal’s 30 June 2021 invitation letter to the applicant, the evidence before the Tribunal is that the nomination application lodged by the nominator was refused on 20 November 2018 and, on 24 June 2021, the Tribunal affirmed the decision to refuse the nomination application. The nomination by the nominator was specifically linked to the applicant’s visa application and that nomination was not approved. As recognised by Kendall J in an analogous matter in Nawsabreen v MICMSMA [2021] FCCA (Nawsabreen), referencing Singh:

    … cl.187.233 can only be met if the nomination which is identified in the visa application is approved. It is a “once off” process. Singh at [90]. The nomination is for a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances: Singh at [88]. A “substitute” cannot be made.

    Accordingly, the first applicant’s submission that he should have been allowed to find a new nominator does not identify jurisdictional error. Whether or not he found a new nominator, the Tribunal was required to affirm the decision.

21. On the evidence before it, the Tribunal finds that there is no approved nomination. The Tribunal is therefore not satisfied that the applicant meets the requirements of cl.187.233(3) as required at the time of decision.

22. 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 stream.

23. Having taken into account all of these matters including the Tribunal’s objectives, the uncertainty of the timing and result of any judicial review application of the nominator, the futility of any new nomination application (as canvassed in Singh and Nawsabreen), the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review generally and refrain from finalising its decision. Upon finalisation of this decision the applicant has the option of proceeding with a conjoined application with the nomination application to the Federal Circuit Court of Australia such that the applicant’s visa refusal would be appropriately considered adjunct to the related nomination matter if that course of action is adopted.

24. 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 to refuse to grant the applicant a Subclass 187 visa must be affirmed.

    DECISION

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

    Susan Trotter
    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.