AGRAWAL (Migration)

[2019] AATA 6146

AGRAWAL (Migration) [2019] AATA 6146 (16 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mayur Bhalchand AGRAWAL
Mrs Ruchi Mayur AGRAWAL

CASE NUMBER:  1710082

HOME AFFAIRS REFERENCE(S):           BCC2015/2638433

MEMBER:Wan Shum

DATE:16 October 2019

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 16 October 2019 at 8:31am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – employer’s position nomination refused – refusal affirmed on review – no response to tribunal’s s 359A letter – member of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 187.223(2)

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) Subclass 187 (Regional Sponsored Migration Scheme) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 10 September 2015. 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.

3. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Accountant. The related nomination was made by AJ Sub Investments Pty Ltd (the nominator) on 10 September 2015.

4. The nomination was refused on 6 March 2017.

5. As a consequence, the delegate refused to grant the visas finding that the applicant did not meet cl.187.223 of Schedule 2 to the Regulations.

6. Both the nominator and the applicants have sought review of the refusals, and were represented in relation to the review by the same registered migration agent.

7. The applicants appeared before the Tribunal on 11 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Jyoti Patel on behalf of the nominator.

8. The Tribunal wrote to the applicants in respect of non-disclosure certificates that were issued by a delegate in relation to certain folios and information contained in an anonymous allegation. In exercising its discretion to release the information, the Tribunal forwarded a full copy of the folios with case officer names redacted where necessary. It did not consider the information relevant to the issue in dispute and thus did not put that information to the applicants for their comments on or response to the information.

9. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the nomination has been approved. 

11. This requirement is set out in clause 187.223 which appears 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 Temporary Transition 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.

12. 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.

13. On the visa application, the applicant provided details of a related nomination, which is the nomination made by the nominator for the position of Accountant. Under the section ENS/RSMS declarations, the applicant responded ‘Yes’ to the sentence “[h]ave declared that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection”.

14. On 24 September 2019, the Tribunal affirmed the delegate’s decision not to approve the nomination.

15. The Tribunal wrote to the applicants regarding this information. A response was due on 11 October 2019. No response was received.

16. The Tribunal has proceeded to a decision. As the nomination has not been approved, cl.187.223(2) is not met. Therefore, cl.187.223 is not satisfied.

17. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

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

    Wan Shum
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)      The position to which the application relates is located in regional Australia.

    (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.