Bassi (Migration)

[2020] AATA 752

Bassi (Migration) [2020] AATA 752 (16 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Anshu Bassi
Ms Ishmeet Kaur
Ms Anaisha Bassi

CASE NUMBER:  1829074

HOME AFFAIRS REFERENCE(S):          BCC2017/275987

MEMBER:Karen Synon

DATE:16 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 March 2020 at 9:57am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Pastry Cook – subject of an approved nomination – no response to s 359A invitation – not entitled to appear before the Tribunal – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40

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 (the Act).

2. The applicants applied for the visas on 20 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 (‘the applicant’) is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Pastrycook’.

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 the nomination lodged by ‘PARAMKUL PTY LTD’ was refused on 27 August 2018.

6. The applicants applied for review of the primary decision on 4 October 2018 and provided a copy of the department’s decision.

7. The applicants were represented in relation to the review.

8. On 28 February 2020 the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to provide comments or respond, in writing, to information it considered would the reason or part of the reason for affirming the decision under review.  In particular, the Tribunal raised information indicating that the review of a decision of the department not to approve a nomination in respect of the applicant made by Paramkul Pty Ltd was affirmed by the Tribunal on 25 February 2020.

9. The applicants were advised that this information is relevant to the review because it is a requirement of the visa that the position specified in the visa application is the subject of an approved nomination.  Comments or a response in writing were invited by 13 March 2020.

10. The s.359A invitation was sent to the applicant’s authorised recipient and representative via email on 28 February 2020.  In this letter the applicants were advised that if a response or comments was not provided in writing by 13 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

11. The applicant did not provide comments or a response within the prescribed period and no extension of time in which to respond was requested.

12. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the applicants via their authorised recipient by email a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the comments or response.

13. In making this decision the Tribunal notes that the visa was refused on 26 September 2018 and the review application was lodged on 4 October 2018.  The applicants have not provided any substantive submissions to the Tribunal since the application for review was lodged.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is cl.187.223.

    Nomination of a position

16. 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.

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. Information available to the Tribunal from the visa application form confirms that the applicant applied for a Subclass 187 visa in the Direct Entry Scheme for the nominated position of ‘Pastrycook’.  The primary decision (a copy of which was provided to the Tribunal) records that this position nomination made by ‘PARAMKUL PTY LTD’ was refused by the Department on 27 August 2018.  Further, as advised to the applicants in accordance with s,359A, the application for review lodged by ‘PARAMKUL PTY LTD’ was affirmed by the Tribunal on 25 February 2020.

19. As the applicant is not the subject of an approved nomination of a position which is the one that was the subject of the declaration that was required to be made as part of the current visa application, he does not satisfy cl.187.233.

20. Therefore, cl.187.233 is not met.

21. 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.

22. As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 187 visa, the secondary applicants also do not satisfy the secondary criteria for the grant of the visa, in particular cl.187.311 which requires that an applicant must be a member of the family unit of a person who holds of a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

    DECISION

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

    Karen Synon
    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.