Chavda (Migration)

[2017] AATA 2473

Chavda (Migration) [2017] AATA 2473 (18 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ashish Vasantbhai Chavda
Miss Jayshriben Govindbhai Parmar

CASE NUMBER:  1705523

DIBP REFERENCE(S):  BCC2016/1366744

MEMBER:Katie Malyon

DATE:18 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 18 September 2017 at 12:34 pm

CATCHWORDS

Migration - Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Nomination application refused by delegate – Requirement for original nomination to be in place – Original nomination not in place at time of decision

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 5.19, Schedule 2, cl 187.233, 187.311

CASES

1412115 [2014] MRTA 294

1305174 [2014] MRTA 2563

Singh v MIBP [2017] FCAFCA 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 Immigration to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 5 April 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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Agreement stream.

4. In the present case, Mr Ashish Vasantbhai Chavda (the first named applicant), is seeking the visa in the Direct Entry stream, to work in the nominated position of Records Manager ANZSCO 224214.  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, as in this case, are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because Mr Chavda did not meet cl.187.233 of Schedule 2 to the Regulations as the nomination application for the position of Records Manager in respect Mr Chavda lodged by Alliance Transport Australia Pty Ltd ATF Alliance Unit Trust (Alliance), being the nomination referred to in cl.187.233(1) of Schedule 2 to the Regulations, was refused by the Department on 17 January 2017. A copy of the delegate’s decision was provided to the Tribunal.

6. The applicants appeared before the Tribunal on 11 September 2017 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages, although it is noted Mr Chavda did not use the services of the interpreter.  Mr Chavda was represented in relation to the review by his newly appointed registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in Mr Chavda's case is whether the Minister (that is, the Department or the Tribunal) has approved the relevant nomination for the purposes of cl.187.233 of Schedule 2 to the Regulations.

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.187.233 of Schedule 2 to the Regulations 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 position that was the subject of the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 of the Regulations that was required to be made as part of the current visa application. The provisions of cl.187.233 of Schedule 2 to the Regulations are extracted in the Attachment to this decision.

10. In addition, this criterion requires that:

    ·the person who will employ the visa 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 of the Regulations), or it is reasonable to disregard any such information;

    ·the position is still available to the visa applicant; and,

    ·the visa application was made no more than 6 months after the nomination of the position was approved.

11. As indicated in the delegate's decision the application for approval of the nominated position of Records Manager in respect of Mr Chavda made by Alliance was refused by the Department. 

    Hearing

12. Mr Chavda told the Tribunal that he was offered the job with Alliance through his former representative: he was never actually interviewed by anyone from Alliance, or had contact with anyone at that company.  His former representative ran a recruitment agency and acted on behalf of Alliance.  When Alliance’s nomination application was refused, his former representative told him that Alliance would not seek review of the Department's refusal of its nomination.  Rather, he said his former representative told him there was only one way forward and that was to withdraw his Subclass 187 visa application.  Mr Chavda said he suggested to his former representative that perhaps it was a lack of documentation from Alliance which had led to the Department's refusal of the nomination but they told him they could not help him. 

13. It was then that Mr Chavda said he sought further advice from a registered migration agent who is also a solicitor.  She told him that it would be necessary for him to seek review in the Tribunal.  Mr Chavda provided the Tribunal with copies of decisions from 2 matters decided by the Migration Review Tribunal (MRT) considering refusals of Subclass 187 visas due to lack of an approved nomination.[1]  The MRT remitted each of these matters on the basis that there was a nomination by the same employer for the same position in place at the time of the MRT’s decision.  Mr Chavda said his solicitor told him such cases could be the basis for his current review before the Tribunal.  The Tribunal explained that these decisions had been superseded by the recent Full Federal Court of Australia decision in Singh v MIBP [2017] FCAFCA 105 of 14 July 2017 (Singh’s case).  

    [1]     1412115 [2014] MRTA 294 (18 December 2014) and 1305174 [2014] MRTA 2563 (30 October 2014).

14. The Tribunal noted that, in Singh’s case, the Court held that the words in cl.187.233 of Schedule 2 to the Regulations refer to a factual event, namely, whether an employer nomination had been made and about which the applicant had made the required declaration in their visa application. As explained by Jagot J, the scheme is a “once off” process.[2] The Court also held that the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted. Further, the Court observed that even a later nomination in respect of the same position, made by the same employer, could not be relied upon to meet the cl.187.233 criteria because the new nomination would not be the one in relation to which the visa applicant’s paragraph 1114C(3)(d) declaration was made.[3]  

    [2]     Singh v MIBP [2017] FCAFCA 105, Jagot J at [90].

    [3]     Ibid, Jagot J at [88]-[89].

15. The Tribunal confirmed that, having reviewed the Department's file, Mr Chavda made the requisite paragraph 1114C(3)(d) declaration in his Subclass 187 visa application: this was necessary for the purposes of making a valid application. The Tribunal showed Mr Chavda his Subclass 187 visa application from the Department's file. He acknowledged that it was his application. The declaration in Mr Chavda's Subclass 187 visa application relates to Alliance's nomination application for the position of Records Manager: this was the nomination refused by the Department on 17 January 2017. The Tribunal noted that, as advised by Mr Chavda, Alliance had not sought review in the Tribunal of the Department's refusal of its nomination.

16. On the evidence before it, the Tribunal is not satisfied that the nomination application associated with the position was approved. Therefore, Mr Chavda does not meet cl.187.233(3) of Schedule 2 to the Regulations. Accordingly, cl.187.233 is not met.

17. It follows that the second named applicant does not meet the requirements of cl.187.311 of Schedule 2 to the Regulations.

18. Mr Chavda 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

19. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Katie Malyon

    
    Member

    Attachment – Extract from the Migration Regulations 1994
    
    

    Schedule 2

    Part 187

    …

    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

    (aa) in relation to which the applicant is identified in the application under subparagraph     5.19(4)(a)(ii); 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.

    oOOo