1420161 (Migration)

[2015] AATA 3818

1420161 (Migration) [2015] AATA 3818 (1 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ritesh Kaler

CASE NUMBER:  1420161

DIBP REFERENCE(S):  BCC2014/2245316

MEMBER:Dione Dimitriadis

DATE:1 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 01 December 2015 at 11:28am

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

2. The applicant applied to the Department of Immigration (the Department) for the visa on 8 September 2014. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Buyer. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa on 8 December 2014 on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination associated with the visa application was refused.

6. The applicant provided a copy of the delegate’s decision record to the Tribunal at the time he lodged the application for review on 10 December 2014.

7. The applicant was represented in relation to the review by his registered migration agent.

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 cl.187.233. 

   Nomination of a position

10. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination).  The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant was the nominator in the application for approval

    ·the nomination has been approved and has not been subsequently withdrawn

    ·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.

12. The applicant applied for a Subclass 187 visa on the basis that he was nominated in the position of Retail Buyer (ANZSCO Code 639211) by the nominating employer (the nominator), Competitive Rentals Pty Ltd. The applicant stated in the visa application that he was seeking the visa in the Direct Entry stream.

13. On 3 November 2015 the Tribunal affirmed the decision to refuse the approval of the nomination of a position in relation to the applicant by the nominator, Competitive Rentals Pty Ltd.

14. On 4 November 2015 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to provide comments on, or a response to, information that the Tribunal  considered would be the reason or a part of the reason for affirming the decision under review in writing. The information was that, on 3 November 2015, the Tribunal had affirmed the decision to refuse the nomination in relation to the applicant by the nominator, Competitive Rentals Pty Ltd.

15. The invitation was sent to the last email address provided in connection with the review and advised that, if the comments or response were not provided in writing by 18 November 2015, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

16. The applicant has not provided the comments or response within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments or response.

17. As the nomination by Competitive Rentals Pty Ltd has not been approved, the Tribunal finds that the applicant does not satisfy cl.187.233(3).

18. Therefore, cl.187.233 is not met.

19. 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

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

    Dione Dimitriadis

    
    

    Member