1509363 (Migration)

[2015] AATA 3827

1509363 (Migration) [2015] AATA 3827 (30 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nikil Ramachandra Gupta

CASE NUMBER:  1509363

DIBP REFERENCE(S):  BCC2014/3329747

MEMBER:Fraser Syme

DATE:30 November 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 30 November 2015 at 3:48pm

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 for the visa on 4 December 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). 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 sales and marketing specialist for his nominator, RNG Solutions Pty Ltd (“RNG”). 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 because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations because the delegate refused the application of RNG to nominate the applicant. The applicant included the delegate’s decision with the review application.

6. The applicant appeared before the Tribunal on 18 November 2015 to give evidence and present arguments. The applicant is also a director of RNG. The Tribunal conducted the hearing to review the decision to refuse the applicant’s visa and to refuse RNG’s nomination of the position of sales and marketing specialist (AAT MRD file 1508091) as a joint hearing.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is the subject of an approved nomination.

   Nomination of a position

9. 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.

10. In addition, the requirements of this criterion include the nomination has been approved and has not been subsequently withdrawn.

11. As noted above, the application of RNG to nominate the applicant was refused by the delegate. The Tribunal discussed with the applicant if it affirmed the decision to refuse RNG’s application to nominate him that would be a reason to affirm the refusal of his visa application. He said he understood.  

12. The applicant nonetheless requested the Tribunal receive evidence as to how he found himself in the situation he now faces. In the Tribunal’s view gave a detailed, coherent and credible account of what he said occurred. In summary, he alleges although the applicant has paid a high professional fee, his former migration agent has misled him. After inducing the applicant to enter into a client agreement on the premise the migration agent would secure employment for the applicant with a suitable business willing to nominate him for permanent residence, the migration agent later advised the applicant to establish his own business and ‘self-nominate’. The applicant’s attempts to run that business failed. He further alleges the migration agent has threatened him when the applicant sought a refund of professional fees that the applicant says the client agreement entitled him to after the refusal of his visa. The applicant told the Tribunal he had made a complaint to the Office of the Migration Agent Registration Authority regarding the alleged misconduct of his former migration agent.

13. The Tribunal is sympathetic to the circumstances of the applicant. However for reasons set out in its decision (AAT MRD 1508091) the Tribunal has affirmed the refusal of RNG’s nomination application. It follows the applicant does not meet the requirements of cl.187.222. 

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.

    MINISTERIAL INTERVENTION

15. During the hearing, the Tribunal discussed with the applicant the discretionary public interest powers of the Minister in s.351 to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter.

16. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

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

    Fraser Syme
    Member