Gabba (Migration)

[2022] AATA 3469

Gabba (Migration) [2022] AATA 3469 (5 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rohit Gabba

REPRESENTATIVE:  Mr Srinivasa Reddy Gottam (MARN: 1462748)

CASE NUMBER:  1904877

HOME AFFAIRS REFERENCE(S):          BCC2018/952655

MEMBER:Danielle Galvin

DATE:5 September 2022

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 5 September 2022 at 1:09 pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Retail Buyer – no approved nomination – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

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 (Cth) (the Act).

2. The applicant, Rohit Gabba, applied for the visa on 28 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 (Cth) (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 the Direct Entry stream, to work in the nominated position of Retail Buyer for the nominator Manahari International Pty Ltd.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because there was no approved nomination in place. The Tribunal had affirmed the Departments’s decision on 19 July 2022 to refuse to approve the nomination.

6. On 9 August 2022 the Tribunal wrote to the visa applicant and advised them that there was no approved nomination in place and that this was a requirement that needed to be met for the grant of the visa. The applicant was also advised that if the Tribunal relied on this information the visa may not be granted. The applicant had until 23 August 2022 in which to provide a written response. No response was received by the required date.

7. In these circumstances s.359C of the Act applies and pursuant to s.360(3) the applicant is 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. In these circumstances, the Tribunal has decided to proceed to make a decision as the applicant has had a fair opportunity to provide relevant information and has not provided evidence that there is an approved nomination in place.

8. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is the applicant meets the required criteria for the grant of a subclass 187 visa.

    Nomination of a position

11. 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.

12. 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 reg 1.13A and reg 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.

13. As stated above there is no evidence before the Tribunal that there is an approved nomination in place as required for the granting of the visa sought.

14. Therefore, cl 187.233(3) and consequently cl187.233 are 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.

    decision

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

    Danielle Galvin
    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.