Damania (Migration)

[2018] AATA 2332

Damania (Migration) [2018] AATA 2332 (22 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dhruvkumar Damania

CASE NUMBER:  1617178

DIBP REFERENCE(S):  BCC2015/2526267

MEMBER:Alan McMurran

DATE:22 May 2018

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 22 May 2018 at 12:00pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), 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 Immigration and Border Protection 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 31 August 2015. 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 Health Practice Manager (ANZSCO 512211). 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 visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because on 9 August 2016 the nomination application for the appointment of the applicant in the role of Health Practice Manager was refused by the Department.

6. A natural justice letter was sent by the Tribunal to the applicant’s newly appointed representative on 26 April 2018, inviting comment or response to information by 10 May 2018. The Tribunal letter informed the applicant that the application for approval of the nominated position by Medinova Pty Ltd was refused, and which refusal was the subject of a review of that decision recently affirmed by the Tribunal in case file 1612800 on 10 April 2018.

7. The Tribunal letter informed the applicant that the refusal of the nominator’s application for the nominated position, which was upheld on review, was information which the Tribunal would, subject to any comments or response, be the reason, or a part of the reason, for affirming the decision under review.

8. The applicant did not respond by the due date and did not seek any extension of time to respond, and the applicant lost any entitlement he might otherwise have had to appear before the Tribunal to give evidence and present arguments. The Tribunal has therefore determined this application on the information before it and contained on the Tribunal’s file and the Department’s file BCC 2015/2526267.

9. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl. 187.233. 

    Nomination of a position

12. 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). The associated nomination application in this case was made on 28 August 2015.

13. 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.

14. On 10 April 2018, the Tribunal made a decision affirming the decision under review to refuse the nomination of the visa applicant as a Health Practice Manager. The Tribunal is also not aware of any further or other nomination in respect of the nominee.

15. Cl. 187.223 requires the position to which the application relates is the position nominated in an application for approval that seeks to meet the requirements of subregulation 5.19 (3) and in relation to which the applicant has been identified as a holder of a subclass 457 (Temporary Work (Skilled)) visa. The regulation provides at subclause 187.223 (2) that the Minister has approved the nomination and at 187.223 (3) that the nomination has not subsequently been withdrawn.

    Findings

16. The Tribunal finds that the applicant is not the subject of a nomination in an application for approval (or that has been approved) so as to meet the requirements of subregulation 5.19 (3). The Tribunal also finds that the Minister has not approved the nomination and there is no nomination which has subsequently been withdrawn.

17. Therefore, cl.187.233 is not met.

18. 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

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

    Alan McMurran
    Member