Fernandes (Migration)

[2020] AATA 3040

Fernandes (Migration) [2020] AATA 3040 (5 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nelson Collin Edwin Fernandes

CASE NUMBER:  1936139

HOME AFFAIRS REFERENCE(S):          BCC2017/4155929

MEMBER:Warren Stooke AM

DATE:5 May 2020

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 05 May 2020 at 6:36pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – no approved business sponsor – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 (the Act).

2. The applicant applied for the visa on 8 November 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Café or Restaurant Manager – ANZSCO Code: 141111.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the applicant was not able to provide evidence of having an approved standard business sponsor.

6. The applicant appeared before the Tribunal on 1 April 2020 to give evidence and present arguments.

7. The applicant confirmed to the Tribunal that he had received and read a copy of the delegate’s decision, which was also provided to the Tribunal with his application. The applicant stated that he understood the application was rejected because of not meeting the criteria of the restaurant.

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 this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

10. The applicant is a 30 year old from India, who stated that he arrived in Australia in August 2017 and that since his arrival he had completed a Bachelor of Business degree and had been working in a restaurant in Seymour.

11. The applicant provided evidence that he has a brother and sister-in-law and mother, on a tourist visa, in Australia.

12. He gave further evidence that his sister is a citizen of Australia and that he last returned to India in September 2019.

13. The Tribunal asked the applicant if he was currently working and he stated that he was not working, as the restaurant had closed.

14. The applicant provided evidence that he does not have a sponsor, at the moment, but if he waited for the ATT hearing (decision) he can look for another sponsor.

15. The Tribunal asked the applicant, if he had an approved standard business sponsor and the applicant replied: “At the moment I do not.”

16. The Tribunal invited the applicant to make any further comment and he advised the Tribunal:

    “Liza Fernandes was approved and I was managing the place and that one other person had already been approved”.

17. The applicant provided evidence that he was invited to comment on the decision concerning his visa application and did not realise until on the next day, 11 November 2019, that he had received a refusal. The Tribunal asked the applicant, if he had sought extra time and he responded: “No”. He stated that he had immediately got the refusal.

18. The Tribunal asked the applicant, if he was aware of the restaurant refusal (as noted in the delegate’s decision provided to the Tribunal with the application) and he responded that they did inform him of the refusal.

    Nomination of a position

19. 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.

20. 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.

21. The applicant provided evidence to the Tribunal that he does not have an approved standard business sponsor and that he is not currently working, as the restaurant he was engaged with has closed. As such, the Tribunal is satisfied that the applicant has not met cl.187.233

22. Therefore, 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.

    DECISION

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

    Warren Stooke AM
    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.