Diwan (Migration)

[2019] AATA 3387

Diwan (Migration) [2019] AATA 3387 (4 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Parshant Diwan
Mrs Deepali Arora
Mr Arindam Diwan

CASE NUMBER:  1805181

HOME AFFAIRS REFERENCE(S):          BCC2017/272736

MEMBER:De-Anne Kelly

DATE:4 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 04 July 2019 at 1:40pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – nomination refused – no review – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2 cls 187.233, 187.311, rr 1.13A, 1.13B

CASES

Hasran v MIAC [2010] FCAFC 40

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 20 January 2017. 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 Direct Entry stream, to work in the nominated position of Retail Manager, ANZSCO 142111.

   The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because on 08 January 2018, the nomination application for the appointment lodged by Jay Charbhujaji Pty Ltd was refused by the Department.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the visa applicant meets r.187.233(3) and also r.187.233.

   Nomination of a position

7. Regulation 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.

8. 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.

9. The nomination by Jay Charbhujaji Pty Ltd was refused on the 08 January 2018 and it was open to the nominator to lodge an application with the Tribunal for a review of the decision to refuse the nomination. There is no record with the Tribunal of an application to review the nomination refusal decision.

10. On the 12 June 2019, the Tribunal wrote to the primary visa applicant, Mr Parshant Diwan and the secondary visa applicants, Mrs Deepali Arora and Mr Arindam Diwan, as required by s.359A of the Migration Act 1958, advising them that there was no approved nomination and inviting them to comment or respond to this information. The invitation was sent to the last address provided in connection with the review. The Tribunal advised the applicants that their response should be received by the 26 June 2019 however they could request an extension of time if required but this request must be received by the 26^th of June 2019. The Tribunal further advised that if their comments or response were not received within the period of time allowed or as extended, the Tribunal may make a decision on the review without seeking any further action to obtain their views on the information. As of today, no response has been received.

11. The review applicants have not provided comments or responded within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments or respond to the information.

12. The Tribunal considers that the applicants have been given a fair and just opportunity to comment or respond to the invitation. The Tribunal is proceeding to make a decision on the review and finds that there is no approved nomination of an occupation in relation to the primary visa applicant, Mr Parshant Diwan, by a standard business sponsor.

13. Since the nomination has not been approved the Tribunal finds that the primary visa applicant, Mr Parshant Diwan does not meet cl.187.233(3).

14. Therefore, cl.187.233 is not met.

15. 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.

16. Mrs Deepali Arora and Mr Arindam Diwan were secondary applicants on the application for a Regional Sponsored Migration Scheme (subclass 187) visa and sought to satisfy cl. 187.311 of Schedule 2 to the Migration Regulations. On the 08 February 2018, a delegate of the Minister refused the visa applications of Mrs Deepali Arora and Mr Arindam Diwan on the basis they did not satisfy cl.187.311. This clause provides as follows:

    187.311

    The applicant:

    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

17. The secondary applicants, Mrs Deepali Arora and Mr Arindam Diwan lodged an application with the Tribunal to review the decision to refuse the visa application. They applied as members of the family unit of a person, Mr Parshant Diwan who holds a Subclass 187 visa. However, the Tribunal has affirmed the decision not to grant the primary applicant, Mr Parshant Diwan a Regional Sponsored Migration Scheme (subclass 187) visa. Therefore, Mr Parshant Diwan is not a person who holds a Subclass 187 visa. Mrs Deepali Arora and Mr Arindam Diwan are members of the family unit of a person who does not hold Subclass 187 visa. Mrs Deepali Arora and Mr Arindam Diwan therefore do not satisfy r.187.311(a) and do not satisfy r.187.311.

18. The secondary applicants Mrs Deepali Arora and Mr Arindam Diwan do not meet r.187.311 and the Tribunal affirms the decision not to grant Mrs Deepali Arora and Mr Arindam Diwan a Subclass 187 visa.

    DECISION

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

    De-Anne Kelly
    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

    (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.