Avichal (Migration)

[2021] AATA 3585

Avichal (Migration) [2021] AATA 3585 (8 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vijaykumar Pankajkumar Avichal
Mrs Krutiben Bhupendrakumar BHATT

CASE NUMBER:  1805610

HOME AFFAIRS REFERENCE(S):          BCC2017/241240

MEMBER:De-Anne Kelly

DATE:8 September 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 08 September 2021 at 8:31am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Retail Manager –no approved nomination – not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, 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 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 18 January 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 Retail Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because there was no approved employer nomination as the application by NJB Retail Pty Ltd was refused by a delegate of the Minister being the application referred to in cl 187.233(1).

6. The applicants were invited to a hearing before the Tribunal on 24 August 2021 to give evidence and present arguments however a postponement was requested on medical grounds pending a medical certificate. The hearing was rescheduled to 26 August 2021 however in the meantime a medical certificate for the applicant stating they were suffering from laryngitis until 27 August 2021 was received. The hearing was re-scheduled to 30 August 2021 and on this date the representative advised that both the applicant and agent would not be attending the hearing.

7. The hearing was re-scheduled to 1 September 2021 and correspondence from the agent was received advising that the applicant and agent would not be appearing, and a decision could be made on the papers. The Tribunal on 3 September 2021 asked the agent to ensure the applicant completed and signed the hearing response indicating that they wished to have the decision made on the papers. There was no response to this request and taking into account the uncooperative approach of the agent and applicant, the Tribunal considers it is reasonable to make a decision on this matter.

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

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

   Section 359AA of the Act

10. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.

11. Section 359AA provides as follows:

    (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)   if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant satisfies cl 187.233(3) which provides as follows.

    (3)       The Minister has approved the nomination.

    Nomination of a position

13. 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.

14. 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.

15. When the delegate refused the employer nomination the employer lodged a review application with the Tribunal.

16. The Tribunal invited the applicant to four (4) hearings which were not attended albeit two of those were subsequently covered by a medical certificate. The agent indicated that a decision could be made on the papers and the Tribunal considers it is reasonable to proceed to a decision on this case.

17. There is no approved employer nomination to satisfy cl.187.233(3) since the Tribunal affirmed the decision to refuse the employer nomination. As such, the Tribunal finds that cl.187.233(3) is not met.

18. Therefore, cl 187.233 is not met.

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. Mrs Krutiben Bhupendrakumar BHATT was a secondary applicant on the application for a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa and sought to satisfy cl.187.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicant on the basis they did not satisfy cl.187.311. This clause provides as below. The secondary applicant lodged an application with the Tribunal to review the decision to refuse the Visa application.

    187.311
    The applicant:
    (a) is 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

    (b) made a combined application with the primary applicant.

21. The secondary applicant made a combined application with the primary applicant and applied as the partner and therefore as a member of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa. Therefore, the primary applicant is not a person who holds a subclass 187 visa. The secondary applicant is a member of the family unit of the primary applicant, who does not hold a subclass 187 visa. The secondary applicant therefore does not satisfy cl.187.311.

22. The secondary applicant does not meet cl.187.311 and the Tribunal affirms the decision not to grant the secondary applicant a subclass 187 visa.

    DECISION

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

    De-Anne Kelly
    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.