Adhikari (Migration)

[2018] AATA 5334

Adhikari (Migration) [2018] AATA 5334 (30 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Naresh Raj Adhikari
Mrs Sunita Subedi Adhikari

CASE NUMBER:  1716279

HOME AFFAIRS REFERENCE(S):           BCC2016/4282762

MEMBER:Karen McNamara

DATE:30 October 2018

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 October 2018 at 11:35am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Automotive Electrician –subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 and Border Protection 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 for the visas on 19 December 2016. 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant Mr Naresh Raj Adhikari (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Automotive Electrician (ANSCO 321111).

5. The delegate refused to grant the visas because on the 9 June 2017 the nomination lodged by Booth, Raymond, referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Immigration and Border Protection.

6. As the nomination application has been refused, the delegate found the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations. Therefore the requirements of paragraph 187.233 have not been met.

7. The applicants applied to the Tribunal on 27 July 2017 for review of the delegate’s decision.

8. The applicants appeared before the Tribunal on 1 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Raymond Booth.

9. The applicants were represented in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicants meet the requirements of cl.187.233.

    Nomination of a position

12. 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.

13. 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.

14. The applicant attended the hearing on the 1 June 2018. It was a combined hearing regarding the nomination refusal.  The Tribunal explained that, to meet cl.187.233, the applicant must be the subject of an approved nomination.  It explained that the review of the nomination refusal must be finalised before the decision in this case could be made. The Tribunal advised that it would write to the applicant advising of the decision.

15. On the 5 September 2018, the Tribunal affirmed the decision refusing the approval of the nomination made by Booth, Raymond, in respect of the applicant.  As the nomination has been refused, regulation 187.233(3) is not met.

16. On 7 September 2018, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant 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 Booth, Raymond  which the Tribunal explained was relevant to Mr Adhikari meeting cl.187.233(3) which requires the nomination to be approved.  As the nomination has been refused, regulation 187.233(3) is not met.

17. 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 21 September 2018, 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.

18. On 21 September 2018 the applicant through their registered Migration Agent sought an extension of time to respond to the Tribunal’s letter of 7 September 2018. The Tribunal subsequently provided an extension to the applicant to respond by 16 October 2018.

19. The applicants did not subsequently respond in writing despite the Tribunal granting an extension to 16 October 2018. The applicants have not provided any evidence to confirm that they are the subject of an approved nomination.

20. Having considered the evidence before it, the Tribunal finds that the primary applicant does not satisfy cl.187.233(3).

21. As such, the primary applicant does not meet an essential criterion for the grant of a subclass 187 visa. Therefore, cl.187.233 is not met.

22. As the primary applicant is found not to have met the prescribed criteria for a subclass 187 visa, the secondary applicant Mrs Sunita Subedi Adhikari as a member of his family unit, therefore is also unable to satisfy the criteria for this visa class.

23. As such the applicants do not meet an essential criterion for the grant of a subclass 187 visa, therefore, cl.187.233 is not met.

24. 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

25. 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

    (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.