Ranjit Singh (Migration)

[2021] AATA 1419

Ranjit Singh (Migration) [2021] AATA 1419 (13 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ranjit Singh

CASE NUMBER:  1918682

HOME AFFAIRS REFERENCE(S):          BCC2017/4764582

MEMBER:Jade Murphy

DATE:13 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 13 April 2021 at 11:05am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – no response to s.359A invitation – loss of the right to a hearing – decision under review affirmed

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

CASES
Singh v MIBP [2017] FCAFC 67

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 13 December 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 (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 Cook (ANZSCO 351411).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations. The delegate found that the nomination referred to in cl.187.233(1) was refused by a delegate for the Minister on 29 May 2019. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.

6. On 19 March 2021, the Tribunal wrote to the applicant pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.

7. The particulars of the information were that the application for review of the related nominated position, made by Tushaan Enterprises Pty Ltd (‘the nominator’) was refused by a delegate of the Minister of Home Affairs on 29 May 2019. The Tribunal noted that the nominator sought a review of that decision with the Tribunal but on 15 May 2020, the Tribunal determined that it has no jurisdiction to determine the nomination refusal review application. This means that the nominator’s application for the nominated position has not been approved.

8. It was explained in the letter to the applicant that this information is relevant to his review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

9. The invitation also specifically stated that the Tribunal must receive the applicant’s comments / response, or any request for an extension of time in which to do so, by 6 April 2021 or they would lose any entitlement they might otherwise have under the Act to appear before the Tribunal.

10. However, the applicant did not provide any comments or response within the prescribed period. Nor did the applicant, or his representative, request an extension of time within the prescribed period in which to do so.

    The Applicant's Loss of the Right to a Hearing

11. The Tribunal notes that it sent the invitation under section 359A of the Act to the email address belonging to the first named applicant, which was the last address for service provided by the applicants in connection with the application for review.

12. However, as noted above, the applicant failed to provide his comments/response to the section 359A invitation within the prescribed period. This means that subsections 359C(2) and subsection 360(3) apply to the applicant and he is not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something they are not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.

13. In addition, the Courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing. In the case of Singh v MIBP [2017] FCAFC 67 the Court held that the operation of ss.359C(2), 360(3) and 363A has no temporal restriction and can take effect at any time before or after a hearing invitation has been issued and before a hearing takes place.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the position to which the application relates is the subject of an approved nomination.

    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 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.

18. On 29 May 2019, the nomination lodged by Tushaan Enterprises Pty Ltd, being the nomination referred to in paragraph 187.233(1), was refused by a delegate for the Minister of Home Affairs.

19. On 12 June 2019, Tushaan Enterprises Pty Ltd lodged an application for Tribunal review, but on 15 May 2020 the Tribunal decided it did not have jurisdiction to determine the nomination refusal review application as the nominator was deregistered. As a result, the nomination remains refused. No application for judicial review is pending.

20. The applicant has not provided the Tribunal with any evidence or submissions in relation to this application for review.

21. Based on the above, the Tribunal finds that the nomination remains refused, and therefore must find that the position to which the application relates is not the subject of an approved nomination.

22. Therefore, cl 187.233 is not met.

23. 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

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

    Jade Murphy
    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.