Chaudhari (Migration)

[2020] AATA 4710

Chaudhari (Migration) [2020] AATA 4710 (13 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vipul Kalubhai Chaudhari

CASE NUMBER:  1817213

HOME AFFAIRS REFERENCE(S):          BCC2017/1131482

MEMBER:Phoebe Dunn

DATE:13 February 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 13 November 2020 at 11:26am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) (ANZSCO 142111) – nomination refused – no application for review – tribunal has no discretion – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359A

Migration Regulations 1994, Schedule 2, cl 187.233(3), rr 1.13A, 1.13B

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 23 March 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 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(3) of Schedule 2 to the Regulations because the related nomination application by Balaji Blackgold Pty Ltd, trading as ‘The Guillie Roadhouse’ (the nominator), being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister for Home Affairs on 10 April 2018 and as such there was no approved nomination.

6. The Tribunal set the matter down for hearing on 2 November 2020.  By email received on 1 October 2020, the applicant advised that he was ‘stuck overseas due to Corona virus pandemic’ and requested that the hearing be postponed on the basis that he wished to travel to Australia to ‘meet my solicitor there’. The Tribunal granted the request and the hearing was postponed.

7. By letter dated 13 October 2020, the Tribunal wrote to the applicant in accordance with the requirements of s.359A of the Act, inviting the applicant to comment on or respond in writing to information that the Tribunal considered was adverse to the applicant’s case, by 27 October 2020.  In its letter, the Tribunal provided particulars of the adverse information, explained the relevance of that information and explained the consequences of the Tribunal relying on the information as follows:

   a.The nomination lodged by the nominator on 21 March 2017 nominating the applicant to work in the nominated position of Retail Manager (General) was refused by a delegate of the Minister on 10 April 2018.  While the nominator applied for review of that decision on 30 April 2018, the nominator subsequently withdrew the application for review on 16 July 2020.

   b.This means that the nomination has not been approved as required under cl.187.233(3) of the Regulations.

   c.This information is relevant to the review because it is a requirement for the grant of a Subclass 187 visa that the related nomination application (being the application referred to in cl.187.233(1), has been approved. Subject to any comments or response, if the Tribunal relies on the information in making its decision, the Tribunal may find that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review.

8. The applicant responded by email dated 20 October 2020, stating that he had applied for review of the decision to refuse his visa application on 30 April 2018, following the refusal of the nomination application and had been waiting for a hearing since then.  He stated that in February 2020 he had to travel overseas for personal family reasons and obtained a Bridging Visa B to enable him to do so.  Prior to travelling he advised the Tribunal of his travel itinerary and left on 2 February 2020 with a return ticket scheduled for 31 March 2020. He stated that due to the COVID-19 pandemic he was stuck in remote India and lost communication with his sponsor and migration agent. He stated he believed that ‘the hearing date was announced to my sponsorer (sic) and he was not able to communicate me and my hearing was withdrawn by default.’ He stated that he then received notification from the Tribunal regarding his first hearing date of 2 November 2020 and contacted his nominator who told him that ‘our hearing was withdrawn’.    He stated that:

   My sponsorer understood my situation that I have stuck overseas due to corona, and i want to fight case in court for my 187 nomination visa.

   And he agreed that if we can grant another hearing date from court then we can appear these time in court. 

   So I request you if you can  put back that withdrawn file into review system again and give us another hearing date, so we can fight that case again in court.

   I have worked hard these two years and I don't mind losing case in court. But at least I want to fight my case in court. 

   So could you please consider my appeal and give us new hearing date for my 187 nomination. 

9. By letter dated 22 October 2020, the Tribunal wrote to the applicant inviting the applicant to attend a rescheduled telephone hearing on 11 November 2020.  By email dated 23 October 2020, the applicant requested a further postponement of the hearing ‘until next year’ on the basis that he was stuck overseas and wanted to travel to Australia to prepare his case as he did not have access to the relevant documents and evidence and because his migration agent was not responding.  By letter dated 27 October 2020, the Tribunal responded to the applicant advising that the Tribunal had considered the request carefully but had determined not to postpone the hearing and provided reasons for not approving the request for a further postponement.  By email received on 27 October 2020, the applicant requested an interpreter in the Hindi or Gujarati languages and advised that:

   I will fight my case by myself because my lawyer is not responding my call.

10. The applicant appeared before the Tribunal by telephone on 11 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

11. 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 a hearing by telephone, 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 telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether there is an approved nomination.

14. At the hearing, the applicant gave detailed oral evidence about the history of this matter, consistent with the written evidence lodged prior to the hearing.  The applicant stated that at the time he applied for the Subclass 187 visa, he was confident that he would be successful as the nominator had been unsuccessful in recruiting a locally based Australian citizen or permanent resident to the position and had received the Regional Certifying Body advice (Form 1404). He was then advised that it had been refused because the nomination had been refused but stated that neither he nor the nominator could understand why the nomination had been refused.  He stated that he and the nominator then applied for review of the decisions to refuse the nomination and Subclass 187 visa applications and he waited more than two years before he heard anything from the Tribunal about a hearing date.  He stated that in February 2020 he went back to India to see his family for a month with a return date of March 2020, but then his flight was cancelled due to COVID-19 and he has been stuck in India since then. He stated that he advised the Tribunal about his travel prior to departing.  He stated that he had unsuccessfully applied to travel back to Australia but had not been able to secure permission to do so.

15. The Tribunal noted the information in the Tribunal’s s.359A letter and reiterated that it was a requirement for the grant of the Subclass 187 visa that the related nomination be approved.  The Tribunal reiterated that as the review of the decision to refuse the related nomination application had been withdrawn it meant that the delegate’s decision was final and as such there was no approved nomination and no application on review.  The Tribunal stated that this mean that the applicant could not meet the requirement for the grant of a Subclass 187 visa in cl.187.233(3) as there was no approved nomination and that a new nomination application can’t satisfy this requirement.

16. The applicant stated that he understood that the nominator had withdrawn the review application and that this meant that he did not meet the requirements of cl.187.233(3) in that there was no approved nomination and no pending review application before the Tribunal.  He stated that the nominator withdrew the review application because they were not able to contact him as he was in a remote part of India.  He stated that he had since spoken to the nominator and they are hoping that the Tribunal will give him another chance by reinstating the review of the nomination application.

17. The Tribunal stated that once a matter had been withdrawn, the Tribunal no longer had jurisdiction and did not have the power to reinstate the review application.  The Tribunal noted that it understood the circumstances were difficult, but that the Tribunal did not have discretion in relation to the requirement that the related nomination be approved. The Tribunal noted further that it was a question of fact as to whether the nomination had been approved and in this case, as the related application for review of the decision to refuse the nomination application had been withdrawn, the delegate’s decision was final and there was no approved nomination.

    Nomination of a position

18. 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.

19. 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.

20. The applicant applied for a Subclass 187 visa on the basis of the application by the nominator for the nominated position of Retail Manager (General) (ANZSCO 142111). That nomination was refused by a delegate of the Minister and as such the applicant’s Subclass 187 visa was refused as there was no approved nomination.  The nominator applied for a review of the decision to refuse the related nomination application, but on 16 July 2020 withdrew that application.  This means that the matter in relation to the nomination has been finally determined and there is no approved nomination.  As such the applicant does not meet the requirement in cl.187.233(3) that the related nomination has been approved.

21. Accordingly, following careful consideration, the Tribunal finds that cl.187.233(3) is not met. Therefore, cl.187.233 is not met.

22. 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

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

    Phoebe Dunn
    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.