Bhardwaj (Migration)

[2020] AATA 747

Bhardwaj (Migration) [2020] AATA 747 (11 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashutosh Bhardwaj

CASE NUMBER:  1812494

HOME AFFAIRS REFERENCE(S):          BCC2016/3562098

MEMBER:Mark Bishop

DATE:11 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 11 March 2020 at 11:37am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
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 Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 October 2016. 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 not specified in delegate’s decision of 13 April 2018.   

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because as stated in the delegate’s record provided to the Tribunal by the applicant “…on 14 March 2018 the nomination lodged by ONENESS (AUST) PTY LTD was refused and the applicant did not provide further comment to the delegate in the period of 28 days prior to the finalisation of the visa application on 13 April 2018.

6. The applicant appeared before the Tribunal on 11 March 2020 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is that the Minister has not approved the nomination application lodged by ONENESS (AUST) PTY LTD.

   Nomination of a position

10. 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.

11. 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.

12. The Tribunal notes the decision in Singh v MIBP [2017] FCAFC105 at [88] – [90] in which the Court held that the nomination relied to satisfy cl.187.223 must be the nomination which has been made at the time of visa application (judgment summary).

13. On 10 and 18 February 2020 the Tribunal wrote to the applicant in relation to the application for review made by him in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa to give evidence and present arguments relating to the issues arising in your case.

14. The applicant had previously provided a copy of the decision record to the Tribunal. See paragraph 5 above. The Tribunal is of the view the applicant was in receipt of written advice as to the nature of the issues under review and before the Tribunal for resolution.

15. Prior to the review hearing the applicant did not provide any information to the Tribunal. The applicant did not provide any further information to the Tribunal that was not before the delegate.

16. In evidence before the Tribunal the applicant advised he did not have any further information to provide, did not have any documents to provide and could not provide a valid nomination to the Tribunal.

17. There is no evidence before the Tribunal that suggests the applicant is the subject of a nomination approved by the Minister as required by cl.187.233(3) of Schedule 2 to the Migration Regulations.

18. Accordingly the requirements of cl.187.233 are 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.

    CONCLUSION

20. 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

    DECISION

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

    Mark Bishop
    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.