Dhital (Migration)

[2020] AATA 3182

Dhital (Migration) [2020] AATA 3182 (5 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jyotsna Dhital
Mr Nuna Raj Upadhya
Miss Aura Upadhya

CASE NUMBER:  1935060

HOME AFFAIRS REFERENCE(S):          BCC2018/1283002

MEMBER:Peter Emmerton

DATE:5 May 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 05 May 2020 at 1:11pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – not the subject of approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 187.233, r 5.19(4)(h)(ii)

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).

2. The applicants applied for the visas on 17 March 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, to work in the nominated position of Café or Restaurant Manager, ANZSCO 141111.

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 nomination was not approved.

6. The applicant appeared before the Tribunal, via telephone, on 5 May 2020 to give evidence and present arguments. The Tribunal found all those presenting evidence to be credible and appeared to answer questions in an open and honest manner without obfuscation.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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 nomination has been approved.

10. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

11. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

    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).

13. 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.

14. The position to which this application relates is the position of Café or Restaurant Manager, working for the applicant’s sponsoring employer Himalayan Yak Pty Ltd.

15. On 21 October 2019 the delegate refused the nomination. The nominator has not applied to the Tribunal for a review of the delegate’s decision.

16. The Tribunal wrote to the visa applicants on 19 December 2019 requesting information.

    ‘REQUEST FOR INFORMATION – MRS JYOTSNA DHITAL, MR NUNA RAJUPADHYA AND MISS AURA UPADHYA

    I am writing about your application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant an Employer Nomination (Permanent) (Class RN) Subclass 187 (Regional Sponsored Migration Scheme) visa.

    It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.

    Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 187 visa must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.

    If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide us with evidence about this by 27 December 2019.’

17. No response to this letter was received by the Tribunal by the requested date nor prior to the hearing.

18. The Tribunal asked the applicant at the hearing if they were able to provide evidence of an approved nomination relating to their visa application which is the subject of this review. They replied that they were unable to provide such evidence.

19. The Tribunal explained to the applicant pursuant to 359(AA) of the Act that the nominated position made by Himalayan Yak Pty Ltd, (the nominator), was refused by a delegate of the Minister for Immigration and Border Protection. It further stated that it had no evidence before it that the nomination had been approved and that the nominator had not applied to the Tribunal for a review of the decision.

20. The Tribunal then stated that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the applicant’s visa application is the subject of an approved nomination.

21. It was explained to the applicant that if the Tribunal relies on this information in making its’ decision, it may find that the position specified in their visa application is not the subject of an approved nomination. This may be the reason or part of the reason for affirming the delegates decision. This would mean that they do not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review.

22. The applicant was invited to give comment on or respond to the above information and asked if they needed additional time to respond. The stated that they did not require additional time to respond to the Tribunal. The applicant went on to explain that they were aware that the nominator had not submitted an application for review by the AAT within the required time period. Ms Dhital also stated that she understood the information presented by the Tribunal.

23. The applicant then asked if the Tribunal could in any way assist them. The Tribunal stated that it must operate within the legislative requirements.

24. The Tribunal enquired as to whether the applicant had sought advice from a migration agent. She replied in the affirmative and that they had advised her that the visa application and a successful nomination had to be linked in order for her application to succeed.

25. The Tribunal has proceeded to decision without taking any further steps to obtain the information, as it is evident the information cannot be provided.

26. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position has not been approved by the Minister. The Tribunal finds the applicant is unable to satisfy 187.223(3).

27. Therefore, cl.187.233 is not met.

28. 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

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

    Peter Emmerton
    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.