DESAI (Migration)

[2023] AATA 958

DESAI (Migration) [2023] AATA 958 (14 April 2023)

NMOIDECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr VIJAY BABUBHAI DESAI
Mrs SNEHAL VIJAY DESAI
Miss KANISHKA  VIJAY DESAI
Miss SYIVIA DESAI
Mr KIAAN DESAI

REPRESENTATIVE:  Mr BABU CHOKKAPPA (MARN: 1068253)

CASE NUMBER:  1928139

HOME AFFAIRS REFERENCE(S):          BCC 2019 / 290236

MEMBER:Namoi Dougall

DATE:14 April 2023

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 14 April 2023 at 1:11pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – retail manager – subject of approved position nomination – related nomination application refused and affirmed in separate review – applicant left nominating business and moved to another city – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 (Cth) (the Act).

2. The applicants applied for the visas on 31 January 2019. 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 (Cth) (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, to work in the nominated position of Retail Manager (General).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the nomination application lodged by Guyra Business Group Pty Ltd (the nominating business) was refused by a delegate for the Minister on 19 August 2019. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.

6. The applicant appeared before the Tribunal on 13 April 2023 to give evidence and present arguments.

7. The applicants were represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the position to which the application relates is the subject of an approved nomination.

Nomination of a position

1. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

2. 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 reg 1.13A and reg 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.

3. At hearing the Tribunal explained the above criteria, particularly the criterion requiring the position to be the subject of an approved nomination was explained to the applicant comprehensively. The applicant confirmed that he understood these requirements. Further, the Tribunal explained that the nomination must be the one that was the subject of the declaration made as part of the current visa application. The applicant confirmed that she understood this requirement.

4. At the hearing, the Tribunal summarised the letter of 30 March 2023, in particular the adverse information as to the nomination application lodged by the nominating business being refused by the Departmental and that decision being affirmed by the Tribunal. The Tribunal asked if the applicant had any response or comments to the adverse information and the applicant stated the nomination was refused 2 years ago you moved another City and left his employment with the nominating business. The nominee stated that the was not aware that the nomination was refused he only heard that his visa application was rejected. The Tribunal explained again that the requirements of cl.187.233 required the position be subject to an approved nomination of a position. The Tribunal suggested that the applicant seek advice.

5. On 19 August 2019, the Department refused the nomination of a position lodged by the nominating business on which the applicant relied for their visa application. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination and the Tribunal affirmed the delegate’s decision on 26 October 2022.

6. As the relevant nomination has been refused, the Tribunal must find that the position to which the application relates is not the subject of an approved nomination.

7. Therefore, cl 187.233 is not met.

8. 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.

9. As the first named applicant does not satisfy cl.187.233 for the grant of a Subclass 187 visa, it follows that the secondary applicants do not meet cl.187.311 for the grant of a Subclass 187 visa.

DECISION

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

Namoi Dougall
Member

ATTACHMENT A

187.233(1)     The position to which the application relates is the position:

(a)nominated in an application for approval that:

(i)identifies the applicant in relation to the position; and

(ii)is made in relation to a visa in a Direct Entry stream; and

(iii)seeks to meet the requirements of subregulation 5.19(12); 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.