Bhatti (Migration)

[2022] AATA 5076

Bhatti (Migration) [2022] AATA 5076 (23 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anil Bhatti

CASE NUMBER:  1902166

HOME AFFAIRS REFERENCE(S):          BCC2017/2265962

MEMBER:Deputy President Justin Owen

DATE:23 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 23 June 2022 at 10:11am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – retail manager – subject of approved position nomination – related nomination application refused – combined hearing of nomination and visa reviews – nomination refusal affirmed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

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 (Cth) (the Act).

2. The applicant applied for the visa on 27 June 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 (Cth) (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 the Direct Entry stream, to work in the nominated position of Retail Manager (General)(ANZSCO 142111).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations which required the applicant Mr Anil Bhatti to be the subject of an approved nomination. The delegate found that the nomination lodged by The Trustee for Kathiriya Family Trust (the nominator) had been refused.

6. The Tribunal exercised its discretion to hold the hearing by videoconference. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter 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 videoconference.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The applicant appeared before the Tribunal on 17 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mukundray Kathiriya (the nominator) in the related matter for the nomination application (AAT Case file 1900524).  The related matters were heard concurrently in a combined hearing.   

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 whether the applicant meets the requirements of cl. 187.233.

   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 reg 1.13A and reg 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. On 27 May 2022, the Tribunal affirmed the decision refusing the approval of the nomination made by The Trustee for Kathiriya Family Trust (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. 

13. On 30 May 2022, the Tribunal wrote to the applicant pursuant to s.359A of the Act.  The letter invited the applicant to comment on or respond to information which the Tribunal considered would, subject to his 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 The Trustee for Kathiriya Family Trust, which the Tribunal explained was relevant to the applicant 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. 

14. On 13 June 2022 the applicant responded to the s.359A invitation.  The applicant acknowledged that the Tribunal has affirmed the Department’s decision made on 27 May 2022 not to approve the nomination made by The Trustee for Kathiriya Family Trust.  The applicant stated he had tried to offer an explanation to the Tribunal at the hearing and through his previous written submissions.  He stated he intended to “take this further and appeal” the decision as he would “like to get this rectified in order to get my visa granted by the Department of Home Affairs”.  Any decision to appeal the Tribunal’s decision is, of course, the applicant’s right.

15. The Tribunal notes that there is no discretion within the Act or the Regulations to waive the requirements of cl.187.233. 

16. At the hearing of 17 May 2022 the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Act and the Regulations are satisfied, and that in his case, his visa application is required to be subject to an approved nomination.  In this instance, there is no evidence before the Tribunal to suggest that the applicant’s visa application is subject to a nomination that has been approved and has not subsequently been withdrawn. 

17. On the evidence before it, the Tribunal finds the nomination application associated with the position as not approved. Therefore, the applicant does not meet cl.187.223(3) of Schedule 2 of the Regulations.

18. Therefore, cl 187.233 is 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.

    decision

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

    Justin Owen
    Deputy President

    
    
    

    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.