BASNET (Migration)

[2017] AATA 1893

BASNET (Migration) [2017] AATA 1893 (13 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prajesh Basnet

CASE NUMBER:  1611610

DIBP REFERENCE(S):  BCC2015/2617238

MEMBER:Katie Malyon

DATE:13 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 13 October 2017 at 12:45 pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – Review of nomination refusal application not lodged

LEGISLATION
Migration Act 1958, ss 65, 114C
Migration Regulation 1994, r.1.13A, r.1.13B, r.5.19, cl.187.233

CASES
Hasan v MIBP [2016] FCCA 1049
Kaur v MIBP [2017] FCCA 564
Singh v MIBP [2016] FCCA 2229
Singh v MIBP [2017] FCAFC 105

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, Mr Prajesh Basnet, a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Basnet applied to the Department of Immigration for the visa on 8 September 2015.  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).  Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Agreement stream.

4. In the present case, Mr Basnet is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (General) ANZSCO 142111.  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, as in this case, are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because Mr Basnet did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination application by The Trustee for Whitten Investment Trust (the Whitten Trust) for the position of Retail Manager (General) ANZSCO 142111 which relates to Mr Basnet was not approved.  A copy of the delegate’s decision as provide to the Tribunal.

6. Mr Basnet appeared before the Tribunal on 10 October 2017 to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Dominic Whitten, a Director of the Whitten Trust, the entity which nominated Mr Basnet as Retail Manager (General) under the regional sponsorship migration scheme.  Mr Basnet was represented in relation to the review by a new registered migration agent.  His recently appointed new representative did not attend the hearing. 

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 Mr Basnet’s case is whether the Minister (that is, the Department or the Tribunal) has approved the relevant nomination for the purposes of cl.187.233 of Schedule 2 to the Regulations.

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.187.233 of Schedule 2 to the Regulations 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 mentioned in paragraph 1114C(3)(d) of Schedule 1 of the Regulations that was required to be made as part of the current visa application. The provisions of cl.187.233 of Schedule 2 to the Regulations are extracted in the Attachment to this decision.

10. In addition, this criterion also requires that:

    ·the person who will employ the visa applicant is the person who made the 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 of the Regulations), or it is reasonable to disregard any such information;

    ·the position is still available to the visa applicant; and,

    ·the visa application was made no more than 6 months after the nomination of the position was approved.

11. As indicated in the delegate's decision, a copy of which was provided to the Tribunal, the application for approval of the nominated position of Retail Manager in respect of Mr Basnet made by the Whitten Trust was refused by the Department. 

    Hearing

12. At the commencement of the hearing, the Tribunal identified the issue in the review is whether there is an approved nomination for the purposes of cl.187.233 of Schedule 2 to the Regulations and explained the law. The Tribunal observed that, in the recent Full Federal Court of Australia decision in Singh v MIBP,[1] the Court held that the words in cl.187.233 of Schedule 2 to the Regulations refer to a factual event, namely, whether an employer nomination had been made and about which the applicant had made the required declaration in their visa application. As explained by Mortimer J, it is a “once off” process.[2]  The Court observed that even a new nomination in respect of the same position made by the same employer could not be relied upon to meet these Schedule 2 criteria because the new nomination would not be the one in relation to which the declaration was made (emphasis added).  The Tribunal also noted that it has no discretion and must apply the law.  

    [1] [2017] FCAFC 105. See also Kaur v MIBP [2017] FCCA 564; Hasan v MIBP [2016] FCCA 1049; Singh v MIBP [2016] FCCA 2229.

    [2] [2017] FCAFC 105, Mortimer J at [90].

13. During the hearing, the Tribunal showed Mr Basnet his Application for Permanent Employer Sponsored or Nominated Visa from the Department’s file.  In his application, Mr Basnet affirmatively declares 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.  (Note: This application will not be valid if the details provided cannot be matched to a nomination that has been lodged with the Department of Immigration and Border Protection)”.

14. In his visa application, Mr Basnet provided details of the transaction reference number for the related nomination lodged by the Whitten Trust.  This was the nomination which was refused by the Department on 18 May 2016.   

15. After listening to the Tribunal’s summary of the law and seeing the declaration made in his visa application, Mr Basnet told the Tribunal he had been misinformed by his representative.  He acknowledged that no application has been lodged with the Tribunal for review of the Department’s refusal of the nomination application lodged by the Whitten Trust.  Mr Basnet added that the representative used by the Whitten Trust for its nomination was the same person he had used for his visa application and that they were misinformed by the representative.  He said that his former representative was ‘always late’ and, eventually, the Whitten Trust did not receive the necessary approval from the Regional Certifying Body (RCB) which led to the Department refusing the nomination application by the Whitten Trust.  Mr Basnet provided the Tribunal at the hearing with assorted email communications to and from the relevant RCB.  The communication confirms that requisite documentation had not been lodged with the RCB by Mr Basnet’s former representative.  In the circumstances, the Tribunal provided Mr Basnet with the Tribunal’s brochure Immigration Assistance with details of where he may wish to make a formal complaint against his former representative.      

16. Mr Whitten told the Tribunal that he and his wife run 2 fast food outlets on the South Coast that employ 25 local staff, all of whom are Australians.  He has one store in Jarvis Bay/Vincentia and another at Nowra.  A third store is expected to be opened in Shell Harbour just before Christmas in 2 months’ time.  Mr Whitten added that Mr Basnet is fundamental to the success of his business having worked with him now for nearly 10 years.  He, too, expressed frustration with the process of dealing with the RCB through the former representative.  Mr Whitten opined that he will not be able to find anyone with the same level of dedication, skills and management experience as Mr Basnet, especially his skills in working with the staff employed in his retail outlets. 

17. The Tribunal acknowledges that it is evident the Whitten Trust is keen to continue Mr Basnet’s employment as a Retail Manager to organise and control the operations of its retail establishments including training and supervising staff.  Mr Basnet also expressed his strong desire to continue working with Mr Whitten.  However, as explained to both Mr Whitten and Mr Basnet during the course of the hearing, the Tribunal has no discretion and must apply the law. 

18. On the evidence before it, the Tribunal is not satisfied that the nomination application associated with the position has been approved. Therefore, Mr Basnet does not meet cl.187.233(3) of Schedule 2 to the Regulations. Accordingly, cl.187.233 is not met.

19. Mr Basnet 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

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

    Katie Malyon

    
    Member

    Attachment – Extract from the Migration Regulations 1994
    
    

    Schedule 2

    Part 187

    …

    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

    oOOo