Dutta (Migration)

[2019] AATA 3243

Dutta (Migration) [2019] AATA 3243 (2 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sunil Dutta
Mrs Seema Navaria

CASE NUMBER:  1902505

HOME AFFAIRS REFERENCE(S):          BCC2018/873975

MEMBER:R. Skaros

DATE:2 August 2019

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction in respect of the second named applicant.

Statement made on 02 August 2019 at 3:27pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – no response to hearing invitation – not entitled to appear before the Tribunal – Direct Entry stream – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A, 379A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 23 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 (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 with Global Enterprises Australia 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 of the position lodged by Global Enterprises Australia Pty Ltd in relation to the applicant was not approved.

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

7. Even though the second named applicant was included in the application for review, the Tribunal notes that it has no jurisdiction to review the decision relating to the second named applicant because she was not in the migration zone at the time of the Department’s decision and at the time of the application for review. Accordingly, the Tribunal does not have jurisdiction in respect of the second named applicant.

8. On 21 June 2019 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 9 July 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

9. No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5) and the invitation has not been returned to sender.

10. As the applicant did not attend the hearing, the Tribunal was unable to discuss with him adverse information it had before it regarding the nominator. In the interest of natural justice, the Tribunal wrote to the applicant pursuant to s.359A of the Act. Details of the adverse information, and its relevance, are discussed further below.

11. The applicants did not provide a response to the Tribunal within the prescribed period. The invitation was sent to the last email provided in connection with the review and advised that, if the comments were not provided in writing by 24 July 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

12. The review applicant has not provided the comments 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.

13. Having regard to the circumstances in this case, including the applicant’s failure to appear before the Tribunal at the scheduled hearing, The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the associated nomination has been approved.

    Nomination of a position

16. 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 and that the position is still available to the applicant.

17. The applicants applied for the visa on the basis of a nomination of a position made by Global Enterprises Australia Pty Ltd (hereafter referred to as the associated nomination). On 13 December 2018 the associated nomination was refused by the Department. Consequently, the applicants’ visa application was also refused.

18. The applicants applied for review of the decision to refuse the visa. The nominator also applied for review of the decision refusing the associated nomination, however, the Tribunal found that it did not have jurisdiction in respect of the application for review relating to the nomination refusal on the basis that that Global Enterprises Australia Pty Ltd had been deregistered.

19. On 10 July 2019 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting him to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. This information related to the Tribunal’s decision that it did not have jurisdiction to review the application made by the nominator, Global Enterprises Australia Pty Ltd, in relation to the refusal of the associated nomination. As noted above, the applicant did not respond to the information.

20. The evidence before the Tribunal, which the applicant has not disputed, indicates that the associated nomination has been refused. A review of that refusal could not be completed due to deregistration of the nominator. In the circumstances, the Department’s decision refusing the nomination stands. On this basis, the Tribunal finds that the requirements in cl.187.233(3) is not met.

21. Further to the above, as the evidence before the Tribunal indicates that the nominator has been deregistered, the Tribunal also considers that the position with the nominator is no longer available to the applicant. The Tribunal further finds that the requirement in cl.187.233(5) is not met.

22. Given the above findings, the Tribunal finds that cl.187.233 is not met.

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.

24. As to the second named applicant, for the reasons given above, the Tribunal has no jurisdiction in relation to the second named applicant.

    DECISION

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

26. The Tribunal has no jurisdiction in respect of the second named applicant.

    R. Skaros
    Senior 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.