Avinash Kumar (Migration)

[2020] AATA 1978

Avinash Kumar (Migration) [2020] AATA 1978 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Avinash Kumar
Mrs Harsimran Kaur Sodhi

CASE NUMBER:  1732760

HOME AFFAIRS REFERENCE(S):          BCC2017/1014485

MEMBER:K. Chapman

DATE:27 May 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 27 May 2020 at 2:19pm 

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – employer’s position nomination refused – application for review of refusal withdrawn – no longer employed by nominator – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

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) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The first named applicant applied for the visa on 14 March 2017, including the second named applicant in the application. 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager (General) (ANZSCO Code 142111). The delegate refused to grant the visa because, in their view, the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, as the associated nomination application lodged by Om Mahalaxmii Pty Ltd was refused on 30 October 2017. The delegate also noted that the Department wrote to the applicant with a natural justice letter regarding the nomination refusal and provided him with 28 days to respond. He failed to do so. On 22 December 2017, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s visa refusal decision was provided with the application for review.

5. On 5 May 2020, the Tribunal invited the applicant to attend a review hearing by telephone scheduled for 26 May 2020. On 22 May 2020, the applicant requested an adjournment of the scheduled review hearing, in order to facilitate his participation in family law proceedings set down for July 2020. Following careful consideration, the Tribunal declined the adjournment request, as the issues raised by the applicant did not relate to the matter under review and would not preclude his attendance at the scheduled hearing.

6. The applicant appeared before the Tribunal by telephone on 26 May 2020 to give evidence and present arguments. The applicant confirmed that he was comfortable proceeding with the hearing by telephone and could appropriately hear the proceedings. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

   Nomination of a position

9. 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. Further, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

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. The applicant explained to the Tribunal that he had the requisite skills and met all the requirements for the Subclass 187 visa, and it didn’t make sense why his visa application would be refused. He contended that the nomination was refused on the basis of the Department’s interview concerning another visa applicant. The applicant informed the Tribunal that he was employed by the nominator from January 2017 until February 2020. He advised that he was then employed as a casual worker with another company. Currently he is an Uber driver. The applicant confirmed that he was no longer employed by the nominator.

12. During the review hearing, pursuant to the procedure in s.359AA of the Act, the Tribunal raised the following information with the applicant:

    ·The application for approval of the nominated position made by Om Mahalaxmii Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but withdrew their application for review in December 2019. This means that the nominator’s application for the nominated position has not been approved.

13. The Tribunal indicated that this information is relevant to the review as it tends to suggest that there is not an approved nomination relating to the applicant with respect to his visa application. The Tribunal indicated that if it were to rely upon the s.359AA information, it would be the reason or part of the reason to affirm the decision under review. The applicant confirmed that he understood why the information is relevant to the review. The applicant was offered additional time before commenting on or responding the information. He responded by advising that he had no comments to make regarding this information.

14. The applicant informed the Tribunal that he first came to Australia as a student in 2014 and initially obtained casual work with the nominator in 2015. He advised that he worked for a long time with the nominator and he wished for the review to be based upon his skills. The Tribunal indicated to the applicant that the evidence tends to suggest he does not have an approved nomination relating to his visa application, inviting his comment. The applicant had no comment to make.

15. On balance, the Tribunal is satisfied that the nomination of the applicant for the position of Retail Manager (General) (ANZSCO Code 142111) has not been approved. Following careful consideration, the Tribunal finds that at the time of its decision there is no evidence of an approved nomination of a position relating to the applicant. Accordingly, the requirements of cl.187.233(3) are not met. It follows that the applicant does not satisfy cl.187.233 of Schedule 2 to the Regulations. The Tribunal so finds.

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. Given that the applicant has not met the requirements for the grant of a Subclass 187 visa, and is not the holder of a Subclass 187 visa, it follows that the second named applicant does not satisfy the requirements of cl.187.311. The Tribunal so finds.

    DECISION

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

    K. Chapman
    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.