Bakhshi (Migration)

[2020] AATA 1195

Bakhshi (Migration) [2020] AATA 1195 (17 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Shelly Bakhshi
Mr Rajnish Bakhshi
Master Vatsin Bakhshi
Miss Ameya Bakhshi

CASE NUMBER:  1802605

HOME AFFAIRS REFERENCE(S):          BCC2017/239295

MEMBER:Karen McNamara

DATE:17 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 17 April 2020 at 11:39am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Marketing Specialist – subject of an approved nomination – pending judicial review ­ – Tribunal declined indefinite adjournment of decision – ­­­­­­decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 (the delegate) 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 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 (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 Mrs Shelly Bakhshi (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Marketing Specialist (ANZSCO 225113).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations which required Mrs Shelly Bakhshi to be the subject of an approved nomination. The delegate found that the nomination lodged by Medical Training and Development (the nominator) was refused by a delegate of the Minister for Immigration and Border Protection on 30 November 2017.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. The delegate also found that the second named, third named and fourth named applicants could not be granted Subclass 187 visas, as they did not meet the secondary visa criterion (cl.187.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

8. The applicants applied to the Tribunal on 1 February 2018 for review of the delegate’s decision.

9. Mrs Shelly Bakhshi represented the applicants before the Tribunal on 16 April 2020 to give evidence and present arguments.

10. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

    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 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.

15. On the 2 March 2020, the Tribunal affirmed the decision refusing the approval of the nomination made by Medical Training and Development Pty Ltd (the nominator) in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.187.233(3) and as such cl.187.233 is not met.

16. On 4 March 2020, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Medical Training and Development Pty Ltd, which the Tribunal explained was relevant to the applicants meeting cl.187.233(3) which requires the nomination to be approved. As the nomination has been refused, cl.187.233(3) is not met.

17. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 18 March 2020 the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement they might otherwise have had under the Act.

18. On the 17 March 2020, the applicant by email responded as follows:

    “We understand that the sponsorship/nomination related to this application has been unsuccessful.

    I have been advised by the Nominator that they wish to go for the judicial review of the application at federal circuit court of Australia as they are aggrieved by the decision.

    In light of this development, it would be highly appreciated if you could hold the decision on the application until the outcome of the Judicial review of the Nomination.

    Yours Sincerely,

    Shelly Bakhshi
    Applicant.”

19. At the hearing the applicant told the Tribunal that she believed, had the nominator been provided additional time to provide documents that her visa would have been granted.

20. The Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in her case, her visa application is required to be, subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that her visa application is subject to an approved nomination.

21. The Tribunal addressed the applicants’ submission to have the decision on their application placed on hold pending the outcome of a judicial review. The Tribunal told the applicant that the objective of the Tribunal, in accordance with the AAT’s President’s Direction, is to provide a mechanism of review that is accessible, fair, just, economical, informal, quick and proportionate. Placing an applicant’s review on hold pending the outcome of a judicial review does not achieve the objective of this Direction. The Tribunal told the applicant that it had considered the applicants’ submission and that it would not delay the Tribunal’s decision regarding their review.

22. The Tribunal has considered Mrs Bakhshi’s evidence and finds that there is no evidence before the Tribunal to support that the applicant’s application is subject to a nomination that has been approved and has not subsequently been withdrawn.

23. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl 187.233(3). of Schedule 2 to the Regulations.

24. As the first named applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

25. There is no evidence before the Tribunal to indicate that the second, third or fourth named applicants meet the primary requirements for grant of the visa.

26. In relation to the second named applicant Mr Rajnish Bakhshi, the third named applicant Master Vatsin Bakhshi and the fourth named applicant Miss Ameya Bakhshi, the Tribunal notes that cl.187.311 of Schedule 2 to the Regulations requires that a secondary visa applicant 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.

27. As 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 secondary applicants, Mr Rajnish Bakhshi, Master Vatsin Bakhshi and Miss Ameya Bakhshi as a member of Mrs Bakhshi’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second, third and fourth named applicants do not satisfy cl.187.311 of Schedule 2 to the Regulations.

28. The applicants have 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.

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

    Karen McNamara
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.