Singh (Migration) [2023] AATA 208 (30 January 2023)

Last Updated: 21 February 2023

Singh (Migration) [2023] AATA 208 (30 January 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mr Sarbjit Singh
Mrs Manpreet Kaur

REPRESENTATIVE: Mr Jujhar Bajwa (MARN: 0742209)

CASE NUMBER: 1918483

HOME AFFAIRS REFERENCE(S): BCC2018/953697

MEMBER: Karen McNamara

DATE: 30 January 2023

PLACE OF DECISION: Sydney

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


Statement made on 30 January 2023 at 12:46pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – transport company manager – related nomination application refused – joint hearing of nomination and visa reviews – nomination refusal affirmed – not reasonable to extend time to allow applicant to find another sponsor – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)
Administrative Appeals Tribunal Act 1975 (Cth), s 2A

CASES
Huo v MIMA [2002] FCA 617
Kaur v MIBP [2014] FCA 915
Manna v MIAC [2012] FMCA 28
MIAC v Li [2013] HCA 18
MIBP v Singh [2014] FCAFC 1

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 (Cth) (the Act).
2. The applicants applied for the visas 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 first named applicant Mr Sarbjit Singh (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position Fleet/ Transport Company Manager under the occupation of Transport Company Manager (ANZSCO 149413).
5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations which required Mr Sarbjit Singh to be the subject of an approved nomination. The delegate found that the nomination lodged by The Trustee for International Limousine Services Unit (the nominator) was refused by a delegate of the Minister for Home Affairs on 30 May 2019.
6. Accordingly, as the nomination application had been refused, the delegate found that cl.187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.
7. The delegate also found that the second named applicant, Mrs Manpreet Kaur could not be granted a Subclass 187 visa, as she did not meet the secondary visa criterion (cl.187.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.
8. The applicants applied to the Tribunal on 9 July 2019 for review of the delegate’s decision.
9. On 21 November 2022, Mr Sarbjit Singh appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Raymond McIlwain (the nominator) in the related matter for the nomination application (AAT Case file 1915649). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
10. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
11. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

Nomination of a position

14. 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 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.
15. In addition, this criterion also requires that:
    • the person who will employ the applicant is the person who made the 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.
16. On the 6 January 2023, the Tribunal affirmed the decision refusing the approval of the nomination made by The Trustee for International Limousine Services Unit (the nominator) in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.187.233(3) and as such cl.187.233 is not met.
17. On 9 January 2023, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by The Trustee for International Limousine Services Unit, which the Tribunal explained was relevant to the applicant meeting cl.187.233(3) which requires the nomination to be approved. As the nomination has been refused, cl.187.233(3) is not met.
18. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 23 January 2023, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act.
19. On 23 January 2023, the representative on behalf of the applicant, responded to the Tribunal via email sent 23 January 2023 at 21:55 PM (AEDT), stating as follows;

‘Dear Member,

1918483 - Mr Sarbjit Singh - NSW

I am writing this email in regards to my client Sarbjit Singh's application for review by the migration and refugee division of the aat.

My client advised me that they need some extension of time as they are looking for another sponsor to nominate him...’^[1]

20. By way of return email on 24 January 2023 the Tribunal advised the representative that the applicant’s request was declined.
21. The Tribunal notes that applicants’ reason for seeking an extension, is to allow the applicants additional time to find another sponsor to nominate them. The Tribunal has carefully considered the applicants’ request and has formed the view that the applicants’ reason in seeking to delay this matter, is not reasonable.
22. In reaching this conclusion the Tribunal has paid careful regard to the guidance in the decisions of 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 held that the Tribunal is not required to indefinitely defer its decision-making process. 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.
23. The Tribunal further observes that the legislative objectives of the Tribunal as set out in section 2A of the Administrative Appeals Tribunal Act 1975, directs that in carrying out its functions; the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal, quick and proportionate.
24. The Tribunal considers that providing additional time to an applicant to find a sponsor in the hope of securing a successful nomination, does not on balance outweigh the legislative objectives of the functions of the Tribunal.
25. Clause 187.233 as applicable in this case, 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 and that the position must be the one that was the subject of the declaration made as part of the current visa application.
26. The Tribunal acknowledges the applicants’ situation and has empathy for their circumstances, however the Tribunal has no discretion in this matter and must apply the relevant law. Having consideration to the issue before it, the Tribunal finds that it cannot postpone making a decision in relation to this application.
27. At the hearing of 21 November 2022, the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in his case, his visa application is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.
28. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.187.233(3) of Schedule 2 to the Regulations.
29. As the applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.
30. There is no evidence before the Tribunal to indicate that the secondary applicant meets the primary requirements for grant of the visa.
31. In relation to the second named applicant Mrs Manpreet Kaur, the Tribunal notes that cl.187.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.
32. As the applicant has not met the requirements for the grant of a Subclass 187 visa and is not the holder of a Subclass 187 visa, it follows that the second named applicant Mrs Manpreet Kaur, as a member of Mr Sarbjit Singh’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.187.311 of Schedule 2 to the Regulations.
33. The applicants have 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

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

Karen McNamara
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.

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^[1] Prepared and transcribed as submitted by Representative