DOSHI (Migration)

[2019] AATA 1159

DOSHI (Migration) [2019] AATA 1159 (1 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr DARSHIL PRAVINBHAI DOSHI
Mrs Ekta Darshil Doshi

CASE NUMBER:  1815100

HOME AFFAIRS REFERENCE(S):           BCC2016/4064881

MEMBER:R. Skaros

DATE:1 April 2019

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 01 April 2019 at 10:33am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – ICT Sales Representative – subject of an approved nomination – nomination application refused – 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 (the Act).

2. The applicants applied for the visas on 2 December 2016. 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 ICT Sales Representative with AVP Solutions Pty Ltd.

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 by AVP Solutions Pty Ltd was not approved.

6. The applicant provided a copy of the delegate’s decision record which indicates that the nomination was refused by the Department on 13 March 2018.

7. On 7 December 2018, the Tribunal wrote to the applicant noting that the nomination of the position has not been approved and requesting the applicant provide information as to whether the relevant nomination has been approved or if there is a pending application for review of the decision not to approve the nomination. The applicant requested an extension of time to provide evidence which the Tribunal granted. The Tribunal subsequently received written submissions and various documents from the applicant.

8. In the written submission, the applicant provided details of his immigration and employment history. The applicant explained that that the nomination made by his employer under the regional sponsored scheme was rejected due to the company having made numerous sponsorship applications. He stated that he has been unable to lodge any further applications onshore. The applicant stated that he has established his own company selling ICT products and solar systems and that his business provides employment to many people directly and indirectly. He stated that he has spent a substantial part of his life in Australia and provided details of his contributions. The documents received from the applicant included evidence of his past employment, outcome of visa applications and bridging visa grants.  

9. The applicants appeared before the Tribunal on 12 March 2019 to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the relevant nomination has been approved.

    Nomination of a position

12. 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. In addition, this criterion also requires that the nomination has been approved.

13. The applicant applied for the visa on the basis of an employer nomination, in which he was identified as the person for the position, made by AVP Solutions Pty Ltd. That nomination, as indicated in the decision record, was refused by the Department.

14. At the hearing, the Tribunal discussed with the applicant the requirements in cl.187.233 and the information before it which suggests he does not meet that requirement. In response, the applicant stated that after the refusal of the nomination he spoke to his employer and was informed that the employer had no funds to apply for review of the Department’s decision to refuse the nomination. The applicant reiterated his evidence relating to past visa applications and nominations made on his behalf. The applicant asked the Tribunal if it was possible to obtain a nomination from another employer and link it to his application for review. The Tribunal explained to the applicant that this was not possible because the provision requiring approval of the nomination has been interpreted by the Courts in such a way that only the nomination made at the time of the visa application can be relied upon to satisfy the requirement in cl.187.233.[1]

    [1] see Kaur v MIBP [2017] FCCA 564 where it was held that the nomination relied on to satisfy cl.187.233 must be the nomination which had been made at the time of visa application.

15. The Tribunal has had regard to the evidence before it and acknowledges the difficulties stated by the applicant. As explained to the applicant at the hearing, a new nomination by another employer will not assist the applicant in this case as it is the nomination made at the time of visa application, and against with the applicant made the relevant declaration, that must be approved for the applicant to satisfy the requirement in cl.187.233(3). In the circumstances, the Tribunal has decided to proceed to a decision on the information before it.

16. The evidence before the Tribunal indicates that the nomination for the position lodged by AVP Solutions Pty Ltd in respect of the applicant, about which the visa applicant made the required declaration in the visa application, was refused. In the circumstances, the applicant does not meet the requirements in cl.187.233(3).  Therefore, cl.187.233 is not met.

17. 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.

18. The secondary applicant applied for the visa on the basis of being a member of the family unit of the first named applicant. As the first named applicant does not meet a requirement for the grant of the visa, the Tribunal must also affirm the decision in respect of the secondary applicant.

    DECISION

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

    R. Skaros
    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.