Borusu (Migration)

[2017] AATA 2265

Borusu (Migration) [2017] AATA 2265 (24 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ravichandranaidu Borusu

CASE NUMBER:  1714348

DIBP REFERENCE(S):  BCC2016/3143739

MEMBER:Karen Synon

DATE:24 October 2017

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 24 October 2017 at 12:39pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent)(Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nomination refused – Position no longer available – Scammed by migration agent

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 187.233, r 5.19(4), r 5.19(4)(h)(ii)

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

2. The applicant applied to the Department of Immigration for the visa on 21 September 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Accommodation and Hospitality Manager (nec)’.  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 are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination lodged by ‘Australian Skill Programs Pty Ltd’ was refused on 17 May 2017.

6. The applicant applied for review of the primary decision on 4 July 2017 and provided a copy of the department’s decision to the Tribunal.

7. The applicant appeared before the Tribunal on 16 October 2017 to give evidence and present arguments.  The applicant’s partner was present throughout the hearing and participate but did not give formal evidence.

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 cl.187.233.

   Nomination of a position

10. For applicants in the Direct Entry stream, cl.187.233 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 that was required to be made as part of the current visa application.

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 explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to him.  As recorded in the primary decision, a copy of which he provided to the Tribunal, this position nomination was refused and therefore is no longer available to him.  The applicant agreed this is the case.

13. The applicant said he came to Australia 9 years ago first to study then working as a waiter until he worked his way up to being appointed as a manager at a Marriott hotel.  However the hotel was sold and the new owners did not want to sponsor him even though the Marriott group wanted him to continue.  He worked there for 3 years on a 457 visa and because the new owners did not want him to continue, he resigned and had 90 days to secure a new position.  He applied for a number of jobs before being approached by Shivam Joshi of Australian Skills Program who invited him to do an RSM regional skilled application for which the applicant paid him $10,000.  He worked at his restaurant in Ballarat which is where the nominated position was located.  However, because the owner could not afford to pay for the 3 months work he did and he was not required to work for him before the visa was approved, he resigned in November 2016.  He then started work in a factory as he did not want to work in hospitality again as he had worked hard to get a manager’s position with a 5 star hotel.

14. After he discovered that his visa was refused he went to see Shivam Joshi and explained that his visa was rejected.  Shivam Joshi told him that he did not have to tell him that the nomination was rejected because that was his business but said he had applied to the MRT for the nomination refusal and the applicant’s visa refusal.  He waited for Shivam Joshi (who was his agent and his employer) to send him the documents but after 72 hours he did not receive them so he consulted a new migration agent who told him he should apply to the MRT.  He now understands that he was scammed.  He repeatedly tried to contact Shivam Joshi at his office in the city but he had left there and could not be contacted.

15. He applied to the MRT to ask for more time because after he resigned his 457 position he had 90 days to find a new sponsor.  The Tribunal noted that he has already had a period of well over 3 months since he resigned in November 2016.  The applicant said he spent the first month trying to contact Shivam Joshi because he had all his documents and he was totally blind-sighted.

16. He said he knows that being able to secure another position will not make any difference to the outcome of this review but he is looking for a state sponsored visa which he needs to apply for offshore.  He is currently trying to get proficient English.  The applicant said he would just like a different bridging visa because he is now on a bridging visa E.  The Tribunal said it does not grant bridging visas and he would need to discuss this with the department.

17. The Tribunal has not delayed its decision for a further 90 days so that the applicant can apply for another visa as requested because firstly, his evidence is that in any case, he would need to apply offshore, secondly he has already had a considerable period of time in which to explore other visa options and thirdly his capacity to apply for another visa cannot affect the outcome of this review; a fact the applicant clearly understood.

18. The applicant’s partner asked what is being done about Australian Skills Program given they were the second hearing that day (in a multi applicant hearing list) that “this horrible man was doing it to other people” and they had been scammed of $10,000.  The Tribunal said they could lodge a formal complaint with Office of the Migration Agents Registration Authority (OMARA)[1] if Shivam Joshi is a registered migration agent and/or with the department.

    [1] < accessed 24 October 2017.

19. Based on the information before it in the primary decision and confirmed by the applicant’s oral evidence, the Tribunal finds that the applicant is not the subject of an approved nomination.

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.

    DECISION

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

    Karen Synon
    Member