Adhikari (Migration)

[2021] AATA 5593

Adhikari (Migration) [2021] AATA 5593 (15 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Rosana Adhikari
Mr Ujjwal SUBEDI

REPRESENTATIVE:  Mr Sukhpal Singh Chahal

CASE NUMBER:  1902529

HOME AFFAIRS REFERENCE(S):          BCC2017/987888 EGODTYJOHM

MEMBER:George Hallwood

DATE:15 December 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 15 December 2021 at 4:40pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – office manager – subject of approved position nomination – related nomination application refused – nominator ceased trading – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3), 187.311(a)

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

2. The applicants applied for the visas on 13 March 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Office Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because they were not satisfied that the Minister had approved the related nomination.

6. The applicants appeared before the Tribunal on 15 December 2021 to give evidence and present arguments.

7. The applicants were represented in relation to the review.

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 there is an approved nomination.

   Nomination of a position

10. 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.

11. 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.

12. Ms Adhikari informed the Tribunal that she had worked with the nominator since 2015 and continued to work there until May 2020 when the business ceased trading due to the impact of the COVID-19 pandemic. It is clear to the Tribunal that Ms Adhikari’s loss of employment with her nominator was through no fault of her own, and the Tribunal notes that her employer did not withdraw their review application with the AAT even though they were no longer trading – indicating that they were still supportive of Ms Adhikari’s application.

13. Ms Adhikari said that initially having a migration agent who was remote from her, and with a high turnover of staff, some of the initial application from her and her nominator may have not assisted the delegate to approve the relevant applications which were subsequently refused.

14. On 21 December 2018, the nomination lodged by JONES, ANDREW DAVID, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Home Affairs.

15. In a submission from the nominator, they informed the Tribunal that in late May 2020 that business ceased trading.

16. On 14 December 2021 the Tribunal affirmed the decision of the delegate in relation to the nomination.

17. The Tribunal is satisfied that this application is not the subject of an approved nomination.

18. Therefore, cl 187.233 is not met.

    CONCLUDING PARAGRAPHS

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.

20. The secondary application is based on being a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa and made a combined application with the primary applicant. As the Tribunal has found that the primary applicant has not met the requirements for approval of a subclass 187 visa, the Tribunal recommends the decision in relation to the secondary applicant reflect that of the primary applicant because the dependent applicant is unable to meet criteria 187.311(a).

    decision

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

    George Hallwood
    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.