Dave (Migration)

[2019] AATA 3193

Dave (Migration) [2019] AATA 3193 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Bindraben Hemal Dave
Mr Hemal Nareshkumar Dave
Master Nakul Dave

CASE NUMBER:  1906583

HOME AFFAIRS REFERENCE(S):          BCC2018/665773

MEMBER:Karen McNamara

DATE:23 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the first and second named applicants Regional Employer Nomination (Permanent) (Class RN) visas.

The Tribunal does not have jurisdiction in this matter in relation to the third named applicant.

Statement made on 23 July 2019 at 2:48pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – subject of an approved nomination – nomination application refused – new nomination submitted – right to apply for review – physically present in the migration zone when the application for review is made – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act). The delegate refused the applications because the first named visa applicant, Mrs Bindraben Hemal Dave, did not meet the relevant criteria for grant of the visa.

2. The applicants applied for the visas on 8 February 2018. 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 first named applicant (the applicant) is seeking the visa in the Direct Entry 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 nominator referred to in paragraph 187.233(1), advised the Department that they had not lodged a nomination for the applicant. The delegate therefore found that the position was not available to the applicant and as a result the applicant did not meet cl.187.233(5).

6. The Tribunal wrote to the applicant on 28 March 2019 inviting the applicant to provide evidence that their application is subject to an approved nomination or a pending review of the decision to refuse the nomination.

7. On 11 April 2019 the applicant provided evidence of a nomination application lodged by Shri Sai Property Ltd with the Department on 11 April 2019, nominating Mrs Bindraben Hemal Dave. The Tribunal notes this is not the nomination subject of this review.

8. On 9 May 2019, the Tribunal invited the applicant to attend a hearing scheduled for 3 June 2019.

9. On 20 May 2019, the applicant sought a postponement on the grounds of family illness and that she was required to travel to India. The Tribunal offered the applicant the opportunity of a telephone hearing and advised the applicant that the hearing would proceed on 3 June 2019.

10. On 3 June 2019, the applicant sought a postponement on compassionate grounds due to a family bereavement. The Tribunal granted a postponement and the hearing was rescheduled to 22 July 2019 via telephone.

11. The applicant appeared before the Tribunal on 22 July 2019 via telephone from India 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 the applicant meets the requirements of cl.187.233.

    Nomination of a position

14. 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.

15. 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.

16. Mrs Bindraben Hemal Dave attended the hearing via telephone on 22 July 2019. The Tribunal explained that in order to meet cl.187.233, the applicant must be the subject of an approved nomination.

17. The applicant told the Tribunal that she has a new nominator and that a nomination has been submitted to the Department on her behalf. The Tribunal explained to the applicant that clause 187.233 provides that the positon must be the one that was subject of the declaration made as part of the current visa application.[1] The Tribunal explained that the matter before the Tribunal is in regard to a different nomination in which the Department had found that her visa application was not subject to a nomination application by her employer at the time.

    [1] Cl.187.233(1) (b) The positon to which the application relates is the position 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.

18. There is no evidence before the Tribunal to support that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

19. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore the applicant does not meet cl.187.233(3) of Schedule 2 to the Regulations.

20. Therefore, as the first named applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 is not met.

21. There is no evidence before the Tribunal to indicate that the second applicant meets the primary requirements for grant of the visa.

22. As the first named applicant is found not to have met the prescribed criteria for a subclass 187 visa, the secondary applicant Mr Hemal Nareshkumar Dave as a member of Mrs Bindraben Hemal Dave’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.187.311.

23. The applicants have 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.

    Jurisdiction in relation to the third named applicant

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) of the Act, 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 s.347(3) of the Act.  The term migration zone is defined in s.5(1) of the Act and generally means the Australian States and Territories.

25. Department records indicate the third named applicant Master Nakul Dave was off shore at the time the application for review was lodged on 20 March 2019. In the circumstances, the Tribunal finds that Master Nakul Dave was not in the migration zone at the relevant time. 

26. As such the application for review made by Master Nakul Dave does not meet the requirements of s.347 of the Act and accordingly, the Tribunal does not have jurisdiction in relation to him.

    DECISION

27. The Tribunal affirms the decision not to grant the first and second named applicants Regional Employer Nomination (Permanent) (Class RN) visas.

28. The Tribunal does not have jurisdiction in this matter in relation to the third named applicant.

    Karen McNamara
    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

    (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.