Tiwana (Migration)

[2020] AATA 1333

Tiwana (Migration) [2020] AATA 1333 (28 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Baljinder Singh Tiwana
Ms Dawinder Kaur
Master Agamjot Singh Tiwana

CASE NUMBER:  1915714

HOME AFFAIRS REFERENCE(S):          BCC2017/1380101

MEMBER:Sheridan Lee

DATE:28 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 28 April 2020 at 1:30pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – subject of an approved nomination – no response to s 359A invitation – not entitled to appear before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40

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 13 April 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 (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 Direct Entry stream, to work in the nominated position of Café or Restaurant Manager.

5. The nomination application lodged by the applicant’s prospective employer, Chaudhary and Singh Pty Ltd, was refused by the Department on 3 May 2019. 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 position to which the application relates was not the subject of an approved nomination.

6. On 3 April 2020, the Tribunal invited the applicant to comment on or respond to information that it considered would be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were:

   a.The application for approval of the nominated position made by Chaudhary and Singh Pty Ltd was refused by a delegate of the Minister. The company sought a review of that decision but the Tribunal determined that it did not have jurisdiction over the matter. As such, the application for the nominated position has not been approved.

   b.Departmental records indicate that the applicant is not the subject of any other approved nomination.

7. The letter outlined that the information was relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application be the subject of an approved nomination. If the Tribunal were to rely on the information in making its decision, it may find that the position specified in the visa application is not the subject of an approved nomination. This would mean that the applicant does not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision that is under review.

8. The invitation was sent to the applicant’s nominated address provided in connection with the review and advised that if a request for an extension, comments or a response was not provided in writing by 17 April 2020 the Tribunal may make a decision on the review without taking further steps to obtain the comments on or a response to the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The applicant did not provide comments on or a response to the information or request an extension of time within the prescribed period.

10. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

11. The Tribunal has had regard to the fact that the visa application was refused by the Department on 14 June 2019 because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations. This clause inter alia requires that the Minister has approved the nomination. The applicant submitted a copy of the primary decision record with the review application. Accordingly, the applicant was aware of the reasons for the visa refusal for more than ten months.

12. Clause 187.233 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 to which the visa application relates must be the position in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made. That is, a declaration that the position is nominated.

13. This requirement cannot be satisfied by a later nomination of a position made by a different employer. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

15. 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.

16. As outlined above, on 3 May 2019 the nomination application made by the applicant’s prospective employer, Chaudhary and Singh Pty Ltd, was refused by a delegate of the Minister.

17. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 187.233 lodged by Chaudhary and Singh Pty Ltd on behalf of the applicant, has not been approved at the time of the Tribunal's decision. As a result, the Tribunal finds that the first named applicant does not meet the requirements of clause 187.233 at the time of its decision.

18. 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.

19. The second and third named applicants applied for the visas on the basis that they are members of the family unit of another person who holds a Subclass 187 visa. As the primary applicant was found not to meet the prescribed criteria, the secondary applicants do not satisfy cl.187.311.

    DECISION

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

    Sheridan Lee
    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.