Dhawan (Migration)

[2022] AATA 4528

Dhawan (Migration) [2022] AATA 4528 (2 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rishab Dhawan

REPRESENTATIVE:  Mr Mark Anthony Bridge (MARN: 1382065)

CASE NUMBER:  1927408

HOME AFFAIRS REFERENCE(S):          BCC2018/911504

MEMBER:Amanda Mendes Da Costa

DATE:2 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 2 November 2022 at 1.11pm

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook (ANZSCO Code 351411).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.

6. The applicant appeared before the Tribunal (by telephone) on 25 October 2022 to give evidence and present arguments.

7. The applicant was represented in relation to the review. His representative did not participate in the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of cl 187.233 of Schedule 2 to the Regulations.

   Nomination of a position

10. 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.

11. 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 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

12. The Tribunal notes that on 7 September 2022 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting him to comment on or respond to information which it considered would, subject to the applicant’s comments or response, be the reason, or part of the reason, for affirming the decision under review.

13. The particulars of the information were that on 21 February 2018 SIMPLY ITALIAN CAIRNS PTY LTD (the applicant’s nominator) made a nomination application in respect of the position of Cook (ANZSCO Code 351411) for the applicant.  However, on 9 August 2019 a delegate of the Minister refused the application.

14. The Tribunal further advised that nominator sought a review of that decision, but the Tribunal found that it did not have jurisdiction to determine the matter because the company had been deregistered[1].

    [1] ASIC records (extracted on 19 September 2022) show SIMPLY ITALIAN CAIRNS PTY LTD was deregistered on 20 June 2021.

15. The Tribunal noted that there was no approved nomination for him and no review of that nomination refusal decision pending[2].

    [2] The Tribunal decision that it had no jurisdiction in respect of the nominator’s application for review was made on 10 February 2022.

16. The Tribunal advised the applicant that this information was relevant to the review because without an approved nomination, he would not meet an essential criterion for the grant of the visa.

17. The Tribunal invited the applicant to provide any comments or response (in writing) by 21 September 2022.

18. The applicant has provided written submissions to the Tribunal (dated 7 September 2022), which may be summarised as follows:

    ·His skill came under the relevant occupation list and he had the necessary experience for the position.

    ·The nominator applied for approval of the nomination by complying with all the provisions of reg 5.19(4).  The nominator and nominee entered into an employment agreement for the position of Cook and the nominator paid all the required taxes.

    ·He did not receive the Department’s letter inviting him to comment on the refusal of the nomination application by the delegate.  This was due to the letter being sent to the email address of his migration agent.  Given that he had lost the opportunity to respond to the Department’s letter, he was denied natural justice and the delegate’s decision should be set aside.

    ·During action, the nominator’s business was operating, and it was only deregistered on 26 June 2021.  The nomination application and the delegate’s decision were made prior to this date.  Therefore, the Tribunal has the jurisdiction to set aside the delegate’s decision to refuse the nomination application.

    ·The Tribunal should consider the hardships face by him during the whole process, through no fault on his part and applying the ‘no-fault – no responsibility principle’ and in the interests of justice set out the decisions made 9 August 2019 (the nomination refusal) and 12 September 2019 (the visa refusal).

    ·He is working with an employer who is willing to make an application for a nomination for the position of Cook.

    Applicant’s oral evidence

19. During the hearing, the applicant confirmed the above submissions and conceded that he was not the subject of any other approved nomination.

20. Based on the evidence before it, the Tribunal is satisfied that the nominator’s nomination application for a position for the applicant, was refused by a delegate of the Minister on 9 August 2019.  The Tribunal is further satisfied that the nominator sought a review of that decision but on 10 February 2022 the Tribunal found that it did not have the jurisdiction to determine the application because the nominating company had been deregistered.  There is no evidence before the Tribunal that the company’s registration has been reinstated with ASIC since that time.

21. Accordingly, the Tribunal is not satisfied that the position to which the visa application relates is the subject of an application for approval of a nomination which identifies the applicant in relation to the position of Cook (ANZSCO 351411).

22. Whilst the Tribunal acknowledges that the delegate’s refusal of the nomination application was not necessarily due to any act or omission by the applicant, it is not satisfied that he meets the requirements of cl 187.233.

23. 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

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

    Amanda Mendes Da Costa
    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.