Yadvinder Singh (Migration)

[2021] AATA 5526

Yadvinder Singh (Migration) [2021] AATA 5526 (12 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yadvinder Singh
Ms Kulwant Kaur
Miss Jasveer Kaur
Master Yashpal Singh

CASE NUMBER:  1829490

HOME AFFAIRS REFERENCE(S):          BCC2017/1329300

MEMBER:K. Chapman

DATE:12 May 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 12 May 2021 at 5:31pm           

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – occupation of Motor Mechanic – impact of the COVID-19 pandemic – no approved nomination – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

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 on 19 September 2018 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The first named applicant, Mr Yadvinder Singh, applied for the visa on 10 April 2017. He included the second, third and fourth named applicants in the visa application. 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 matter, the first named applicant (hereafter ‘the applicant’) is seeking the visa in the Direct Entry stream to work in the nominated occupation of Motor Mechanic (ANZSCO Code 321211). His position was nominated by Mr Bradley Scott Johnson T/A ‘Performance Auto’s Nerang’ (‘the nominator’).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, which required him to be the subject of an approved nomination by the original nominating employer, which has not been withdrawn and with the position still being available to him. The delegate found that the nomination made by the nominator had been refused on 12 July 2018. Additionally, the secondary applicants were refused the visa given they were not a member of the family unit of a person who met the primary visa criteria and there was no evidence that they met the primary visa criteria in their own right.

6. On 9 October 2018, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application for review. The applicant appeared by telephone before the Tribunal on 1 April 2021 to give evidence and present arguments. The applicant confirmed that he was comfortable participating in the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant confirmed he understood the interpreting service. The applicant was represented in relation to the review by his registered migration agent.

7. Following the review hearing, on 21 April 2021, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting him to provide comments on, or response to, the following information:

   a.“The application for approval of the nominated position made by Mr Bradley Scott Johnson (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the Tribunal (see AAT matter 1822057). This means that the nominator’s application for the nominated position has not been approved.”

8. On 5 May 2021, the applicant responded by lodging submissions contending that he has been in Australia a long time, abided by visa conditions and integrated well into the community. Additionally, he requested that a further hearing be conducted, to allow him to present evidence, following notification that the nominator’s review application had been affirmed.

9. Following careful consideration, the Tribunal declined the request for a further hearing as the nominator’s matter has been finally determined and the issue before it in this matter is whether there is an approved nomination in respect of the applicant. On 6 May 2021, the Tribunal invited the applicant to provide further written material to the Tribunal, not later than 11 May 2021, if he wished to do so. The applicant did not avail himself of this opportunity.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant satisfies cl.187.233.

    Non-Disclosure Certificate – s.376 of the Act

12. During the review hearing, the Tribunal conferred with the applicant regarding the existence of a Non-Disclosure Certificate, pursuant to s.376 of the Act, dated 23 March 2021. Prior to the review hearing, a copy of this Certificate, a revoked s.375A Certificate and the revocation document were sent to the applicant, through his representative. The applicant was invited to, but did not, make pre-hearing submissions on the validity of the extant s.376 Certificate.

13. The Tribunal explained at the review hearing that Departmental file BCC2017/1329300 contains the s.376 Certificate dated 23 March 2021. The certificate indicates that release of material, at ADD2018/5064092, would be contrary to the public interest because it would ‘disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.’

14. The Tribunal invited the applicant at the review hearing to make submissions on the validity of the s.376 Certificate if he wished to do so. His representative advised that there is no contest on the validity of the s.376 Certificate. The Tribunal advised it formed the view that the Certificate is valid, given public interest grounds are properly stated. Following careful consideration, the Tribunal decided not to release the material under cover of the Certificate in full to the applicant, but provided ‘the gist’ of the material to him.

15. ‘The gist’ of the material is that in Departmental file BCC2017/1329300 there are Notes on a Departmental database dated 10 April 2017, at ADD2018/5064092, indicating the applicant was a client of interest to the Department at that time. The Tribunal advised that it proposed to place no weight upon this information as it is not relevant to the issue before it in this review. The applicant and representative were invited to comment upon this proposed course of action. They had no submissions to make given the Tribunal’s proposed course. Accordingly, the Tribunal confirms that it has placed no weight upon this material in any adverse sense.

    Nomination of a position

16. 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.

17. 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.

18. At the review hearing, the applicant advised that he last worked for the nominator in February 2020 due to the COVID-19 pandemic causing the workshop to close. The applicant maintained that he will return to work when the workshop reopens following the cessation of the pandemic. The applicant also indicated that presently he is working as a mechanic in a trucking company in Brisbane. The Tribunal has carefully considered the submitted evidence of the applicant.

19. The Tribunal notes that the nomination of the applicant for the position of Motor Mechanic (ANZSCO Code 321211) by Mr Bradley Scott Johnson T/A ‘Performance Auto’s Nerang’ (‘the nominator’) has not been approved. Following careful consideration, the Tribunal finds that at the time of its decision there is no evidence of an approved nomination of a position relating to the applicant. Accordingly, the requirements of cl.187.233(3) are not satisfied. The Tribunal so finds.

20. 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.

21. It follows that the second, third and fourth named applicants also do not meet the criteria for the grant of the Subclass 187 visa.

    DECISION

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

    K. Chapman
    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.