Aggarwal (Migration)

[2017] AATA 3017

Aggarwal (Migration) [2017] AATA 3017 (24 November 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nishant Aggarwal
Mrs Nidhi Malhotra
Miss Omaira Aggarwal

CASE NUMBER:  1603783

DIBP REFERENCE(S):  BCC2014/2315123 BCC2016/1428943

MEMBER:Antoinette Younes

DATE OF DECISION:  24 November 2017

DATE CORRIGENDUM

SIGNED:12 February 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The month ’December’ on page 1 of the Decision Record should be replaced with ‘November’.

Antoinette Younes
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nishant Aggarwal
Mrs Nidhi Malhotra
Miss Omaira Aggarwal

CASE NUMBER:  1603783

DIBP REFERENCE(S):  BCC2014/2315123 BCC2016/1428943

MEMBER:Antoinette Younes

DATE:24 December 2017

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 24 November 2017 at 10:41am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – No approved nomination

LEGISLATION
Migration Act 1958, ss 65, 375
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19, 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 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 15 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager. 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 relevant nomination was refused.

6. The applicants appeared before the Tribunal on 22 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case iscl.187.233.

   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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

10. 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.

11. In the course of the hearing, the Tribunal indicated to the applicant that in the delegate’s decision record provided by the applicant to the Tribunal in support of the application for review, it is noted that on 20 January 2015, the nomination lodged by Guru Mahima Pty Ltd, being the nomination referred to in cl.187.233(1), was refused by the delegate. The Tribunal indicated that this means that as the nomination had been refused, the applicant does not meet cl.187.233(3) which requires the nomination to be approved.

12. The applicant referred to other approved nominations and he provided documents in the course of the hearing. The documents essentially relate to taxation details of Guru Mahima Pty Ltd and different employees of Guru, including approved nominations and visa grants relating to Gurmeet K RATAUL and Navroop K GILL. None of the documents provided show that the nomination in relation to the applicant had been approved at any stage. The applicant referred to a previous issue in relation to PIC4020 that the nomination must have been refused because of PIC4020. The Tribunal referred to information contained in Departmental files indicating that in relation to his application for a Skilled (Residence) (Class VB) visa, the applicant was found not to satisfy PIC4020.  The Tribunal observes that both the Department and later the Tribunal on 26 March 2014 found that the applicant did not satisfy PIC4020 and decided not to waive the requirements of PIC4020.

13. The Tribunal referred to the copy of s.375 Certificate relating to the skilled visa application – BCC2009/291500 (in file number BCC2014/2315123) and indicated that any documents subject to that certificate are not relevant to its decision and that whilst an adverse finding in relation to PIC4020 is significant and serious, it is not relevant to the current review as the 187 visa application was refused on the basis of cl.187.233. The Tribunal indicated that even if he were to meet cl.187.233, the issue of PIC4020 could become relevant but it is not relevant in the current review. The Tribunal reiterated that the issue for the refusal of the 187 visa application is failure to meet cl.187.233. The applicant continued to refer to PIC4020 and suggested that it might have been the reason for the refusal. The Tribunal indicated that this is not evident in the delegate’s decision record of 26 February 2016 and that the Tribunal would not be taking into account any matters relating to PIC4020.

14. The second named applicant referred to the family having been in Australia for years and requested a favourable outcome.

15. The Tribunal has not taken into account the adverse findings relating to PIC4020 or any other information about the applicant’s history because they are not relevant to the current review. The only relevant issue is whether the applicant meets cl.187.233. On the basis of the available information, the Tribunal finds that as the nomination has been refused, the applicant does not meet cl.187.233(3) which requires the nomination to be approved. Therefore, the applicant does not meet cl.187.233.

16. 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.

17. In relation to the second-named applicants, as the applicant has not met cl.187.233, the other applicants do not meet cl.187.311.

    DECISION

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

    Antoinette Younes

    
    Senior Member