Dalwadi (Migration)

[2018] AATA 2360

Dalwadi (Migration) [2018] AATA 2360 (22 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Priyankaben Vipulkumar Dalwadi
Mr Jaykumar Bharatkumar Soni

CASE NUMBER:  1721636

DIBP REFERENCE(S):  BCC2016/4067897

MEMBER:Mark Bishop

DATE:22 May 2018

PLACE OF DECISION:  Melbourne

DECISION:In respect of the first named applicant Ms Priyankaben Vipulkumar Dalwadi the Tribunal affirms the decision not to grant the applicant Regional Employer Nomination (Permanent) (Class RN) visas.

In respect of the second named applicant Mr Jaykumar Bharatkumar Soni the Tribunal does not have jurisdiction in the matter.

Statement made on 22 May 2018 at 11:07am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

Practice and Procedure – Requirement for applicant to be in the migration zone at time of application – Second applicant not in migration zone at time of application – Tribunal does not have jurisdiction in relation to the second applicant

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 338, 347, 359A
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

CASES
Singh v MIBP [2017] FCAFC105

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 and Border Protection 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 for the visas on 2 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in a nominated position. 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 application for an appointment in the business of the nominator had not been approved.

6. The applicants were represented in relation to the review by their 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 the present case is whether the applicant satisfies cl.187.233 which requires that the nomination has been approved.

   Applicant Priyankaben Vipulkumar DALWADI 

9. 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

10. 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.

11. The Tribunal notes the decision in Singh v MIBP [2017] FCAFC105 at [88] – [90] in which the Court held that the nomination relied to satisfy cl.187.223 must be the nomination which has been made at the time of visa application (judgment summary).

12. On 7 May 2018 the Tribunal wrote to the applicant in relation to the application for review made by him in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa.

13. On 7 May 2018 the Tribunal wrote to the applicant under s.359A requesting the applicant comment on some potentially adverse information. The Tribunal provided the particulars of the adverse information, explained its relevance and outlined the potential consequences if the Tribunal had regard to the potentially adverse information.

14. The potentially adverse information related to a decision of the Tribunal on 7 May 2018 in an application for review by Dulhan Exclusives Pty Ltd the Tribunal affirmed the decision to review the nomination.

15. The applicant did not respond to the above request as outlined in paragraph 13 and 14 above. The applicant did not provide any comments or respond to the information in writing.

16. On 7 May 2018 the Tribunal wrote to the applicant in relation to the application for review made by him in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa.

17. The Tribunal invited the applicant “under s.359(2) to provide in writing information demonstrating that you are the subject of a nomination approved by the Minister under r.5.19 as required by cl.187.233(3) of Schedule 2 to the Migration Regulations 1994”.

18. The applicant did not respond to that request for information. The applicant did not request an extension of time to respond to the request. The applicant did not provide any information as requested.

19. There is no information before the Tribunal that suggests the applicant is the subject of a nomination approved by the Minister as required by cl.187.233(3) of Schedule 2 to the Migration Regulations.

20. Accordingly the requirements of Cl.187.233(3) are not met.

21. Therefore, the Tribunal must affirm the decision under review.

    Secondary applicant Jayakumar Bharatkumar SONI

22. The above named secondary visa applicant was not in the migration zone at time of lodgement of the visa application or review application

23. The review application was lodged with the Tribunal on 2 December 2016. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

24. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.

25. The Department’s movement records show the above named secondary applicant departed Australia on 10 June 2012. Accordingly the applicant was offshore when he lodged the application for review. The Tribunal finds that the applicant was not in the migration zone at the relevant time. As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.

    DECISION

26. The Tribunal does not have jurisdiction in this matter.

    CONCLUDING PARAGRAPH

27. 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

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

    Mark Bishop
    Member