BHASIN (Migration)

[2020] AATA 3248

BHASIN (Migration) [2020] AATA 3248 (15 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sahil BHASIN

CASE NUMBER:  1815808

HOME AFFAIRS REFERENCE(S):          BCC2016/4323939

MEMBER:Stavros Georgiadis

DATE:15 June 2020

PLACE OF DECISION:  Adelaide 

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

Statement made on 15 June 2020 at 12:34pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Cook –no approved nomination – not the subject of an approved nomination – applicant is no longer employed by the nominator–decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19, 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 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 21 December 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 Cook (ANZSCO 351411).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination of the position had not been approved: cl.187.233(3).

6. The applicant appeared before the Tribunal by teleconference on 15 June 2020 to give evidence and present arguments.

7. 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 the hearing by telephone, having regard to the nature of the matters and the individual circumstances of the applicant. 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.    

8. The Tribunal was assisted by an interpreter of the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The material issue in the present case is whether the applicant satisfies the criteria in cl.187.233 for the grant of the visa.

    Nomination of a position

11. 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.

12. In addition, this criterion also requires that:

    ·the person who will employ the 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); 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.

13. From the visa application on the Department file the Tribunal notes that the required declaration has been made in relation to the position nominated by the employer sponsor, being that of Cook (ANZSCO 351411) for the purposes of cl.187.233(1).

14. The Tribunal is satisfied, on the documentary and oral evidence before it, that the person who would employ the applicant is the nominator in the application for approval, La Sapori Pty Ltd trading as La Sapori Restaurant in Adelaide, South Australia, for the purposes of cl.187.233(2). The applicant’s oral evidence is that La Sapori Restaurant ceased trading from August 2018.

15. On 10 April 2018, the Department decided to refuse the nomination of the position under r.5.19.  The matter had been appealed to the Tribunal but on 10 February 2020, the nominating employer withdrew the application for review, in writing, in the related case-file number 1812190 which the Tribunal accepted as withdrawn on 13 February 2020.

16. In accordance with the procedure under s.359AA of the Act, the Tribunal put to the applicant at the hearing that it wished to discuss with him information that, subject to his comments, would be a reason or part of the reason, for affirming the decision to refuse the applicant the Subclass 187 visa. The Tribunal explained to the applicant at the hearing that he would be invited to comment on, or respond to, this adverse information and could seek additional time to comment or to respond to the information the Tribunal was about to put, which the Tribunal would consider.

17. The Tribunal put to the applicant that on 13 February 2020 the Tribunal accepted the nominating employer’s withdrawal of the application for review of the decision of 10 April 2018 refusing the nomination for the position by the nominating employer and accordingly, the refusal decision stood as a result of the discontinuance of the application for review.

18. The Tribunal also advised the applicant that this information is relevant to this review because without evidence of an approved nomination for the position, the applicant could not satisfy cl.187.233(3) of the Migration Regulations as an essential criterion for the grant of the Class RN visa sought.

19. The Tribunal put to the applicant that without an approved nomination, he would not be able to meet cl.187.233 for the grant of the visa and that his application would, on that basis, be unsuccessful.

20. The applicant responded immediately and did not seek additional time to provide further comments in relation to the information put. The applicant told the Tribunal that he became aware in January 2020 that his nominating employer had withdrawn the appeal before the AAT to review the nomination refusal.  He confirmed that he had ceased employment with La Sapori Restaurant because it had ceased to trade from August 2018.  He explained that he had relocated to Melbourne and secured work, this time as a Chef, but that he had not yet been able to find a new employer sponsor for a new nomination. 

21. The applicant requested the Tribunal allow him further time of ‘three to four months’ particularly in light of the limitations adopted by businesses due to the circumstances of the COVID-19 coronavirus, to try to find a new sponsor employer for a new nomination.  The Tribunal noted that the applicant had been advised in January 2020 of the nomination appeal withdrawal and already had since August 2018 to find and secure a new sponsor employer and a new nomination for a position, but to date had been unsuccessful.  In light of this considerable passage of time and also taking into consideration the Tribunal’s objectives to be fair, just, economical and quick, and not delay to the matter, the Tribunal declined to allow the further time requested.

22. The applicant confirmed to the Tribunal, when asked, that he understands and accepts that in circumstances where there is no approved nomination, his Subclass 187 visa application cannot be successful as an approved nomination for the position is one of the essential requirements (cl.187.233(3)). The applicant confirmed that there is no approved nomination for the position.

23. Having considered the available evidence before it, the Tribunal is satisfied that the position of Cook (ANZSCO 351411) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.233(3) for the Direct Entry stream. The Tribunal finds that the nomination of the position to which the application relates is not approved.

24. Therefore, cl.187.233 is not met.  

25. 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

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

    Stavros Georgiadis
    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.