Alavi (Migration)

[2017] AATA 2120

Alavi (Migration) [2017] AATA 2120 (30 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Panteha Alavi

CASE NUMBER:  1612850

DIBP REFERENCE(S):  BCC2016/790057

MEMBER:Christopher Smolicz

DATE:30 October 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 30 October 2017 at 1:13pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry scheme – Interior designer – Nomination refused by minister – No valid nomination

LEGISLATION

Migration Act 1958, ss 65, 359A, 359C, 360

Migration Regulations 1994, r 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 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 25 February 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 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 Interior Designer (ANZSCO 23511).

5. 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.

6. The delegate refused to grant the visa because the applicant did not meet cl.187.223(3) of Schedule 2 to the Regulations because the nomination was not approved.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

8. On 16 October 2016 Mr Hamidreza Soroush trading as Silhouette Painting and Maintenance (the applicant’s sponsoring employer) applied to the department for approval of a nomination for the position of Interior Designer (ANZSCO 23511). In a separate decision, a Departmental delegate refused the application on the basis the sponsoring employer’s nomination application did not satisfy r.5.19(4)(a)(ii) of the Regulations. The sponsoring employer applied to the Tribunal to review the decision. On 22 September 2017 the Tribunal affirmed the Department’s decision to refuse the nomination.

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

10. On 11 October 2017 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised her that the Tribunal had affirmed the decision of Department refusing approval of the nomination of an appointment made by Mr Hamidreza Soroush.

11. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the relevant nomination, she cannot satisfy the provision at clause 187.233(3) of the Migration Regulations.

12. The applicant was advised that if she cannot satisfy cl.187.233 the Tribunal would affirm the decision of the Department of Immigration and Boarder Protection refusing her the visa.

13. The applicant was invited to provide a written response by 25 October 2017. The letter advised the applicant that if she did not comment or response within the period allowed or extended, the Tribunal may make a decision on the review without taking any further action.

14. At time to making this decision the applicant has not responded to the letter.

15. As the applicant has not provided the information within the prescribed period, and no extension has been sought or granted, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The Tribunal has proceeded to decision without taking any further steps to obtain the information, as it is evident the information cannot be provided.

    Nomination of a position

16. 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.

17. 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.

18. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 187.233(3).

19. Therefore, cl.187.233 is not met.

20. 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

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

    Christopher Smolicz
    Member