1504733 (Migration)

[2016] AATA 4175

1504733 (Migration) [2016] AATA 4175 (2 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr RAJESHKUMAR NARSHIBHAI GOLAKIA
Mrs Yogitaben Golakia

CASE NUMBER:  1504733

DIBP REFERENCE(S):  BCC2014/2551336

MEMBER:Jennifer Ciantar

DATE:2 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 02 August 2016 at 9:29am

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 3 October 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Disability Services Officer. 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 visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination lodged by the Department of Health was withdrawn on 18 February 2015.

6. The applicants appeared before the Tribunal on 28 July 2016 to give evidence and present arguments.

7. 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

8. 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.

9. 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.

10. The applicant provided the Tribunal with a copy of the Department’s decision record and gave evidence that the Department of Health withdrew their nomination and also terminated the applicant’s employment. He has provided the Tribunal with submissions explaining the circumstances surrounding the withdrawal of the nomination and the termination of his position and asked the Tribunal to apply natural justice in his case.

11. The applicant also stated that in March 2016 he lodged a new visa application as he has been nominated for the position of disability services officer with GIFSA in Kalgoorlie and the employer has lodged a nomination application. He has been working for this employer for some months and he hopes that the Department will begin to process the applications in September or October 2016. The Tribunal indicated that unless the nomination was lodged by the same employer, that is, the Department of Health, for the same position, the new nomination application would not assist the applicant in respect of the visa application being considered by the Tribunal. In these circumstances, there was no point in the Tribunal delaying its decision pending the Department assessing the new applications.

12. The Tribunal has given consideration to the applicant’s submissions and his current circumstances but as discussed with the applicant, the Tribunal has no discretion in this matter. The Tribunal finds that the sponsoring employer, the Department of Health, withdrew the nomination which identified the applicant as the nominee, on 18 February 2015. The Tribunal also finds that the position of Disability Services Officer with the Department of Health is no longer available to the applicant. The Tribunal finds that the requirements of cl.187.233(3) and cl.187.233(5) are not met.

13. Therefore, cl.187.233 is not met.

14. 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

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

    Jennifer Ciantar
    Member