Gadhiya (Migration)

[2020] AATA 730

Gadhiya (Migration) [2020] AATA 730 (13 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bhargav Bipin Gadhiya
Ms Mansi Jayantibhai Bhut

CASE NUMBER:  1834841

HOME AFFAIRS REFERENCE(S):          BCC2018/93039

MEMBER:Mark Bishop

DATE:13 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 13 March 2020 at 11:19am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – subject of an approved nomination – request for adjournment – no review application before the Tribunal – 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 7 January 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 of not outlined in delegate’s decision.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because on 12 October 22018 the nomination lodged by Osag Pty Ltd referred to in paragraph 187.233(1) was refused by a delegate of the MIBP and subsequent to this date the applicant failed to respond within the specified time frame to a natural justice letter inviting comment within 28 days.

6. The applicants appeared before the Tribunal on 13 March 2020 to give evidence and present arguments. The MA for the applicant also appeared and made submissions to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is the failure of the Minister to approve the relevant nomination.

   Nomination of a position

9. 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.

10. 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.

11. On 10 February 2020 the Tribunal wrote to the applicant and requested he “provide all documents you intend to rely on to establish that you meet the criteria for the visa”. The provided documents to the Tribunal. The documents are summarised immediately below:

    ·Copy of ATO pre-filling report 2019;

    ·Copy of a national police certificate;

    ·ATO notice of assessment FY2017;

    ·Copy of wife’s passport details;

    ·PTE Academic test Score report;

    ·Advice of Approval from an agency of the Tasmanian government in a RCB certification application

12. Prior to the hearing the Tribunal explained to the applicant the purpose of the hearing, the process of the hearing, the detail set out in the letter of invitation, the matter for determination being the application for review of a decision to refused to grant 187 Regional Sponsored Migration Scheme visa the necessity to provide evidence to the Tribunal and in a general way the form of that evidence and the process of questioning by the Tribunal.

13. In evidence the applicant advised the Tribunal he did not have a current nomination and could not provide a copy of a current nomination.

14. At the conclusion of the review hearing the MA for the applicant advised he sought a short adjournment of 24 hours because he believed an application for review lodged by Osag Pty Ltd had been resolved (by another member) and remitted to the Department on 12 March 2020. The Tribunal undertook to examine the relevant file and have regard to it in its decision making in the current review application and would grant the short adjournment if necessary.

15. The Tribunal examined the Casemate file in Case number 1830469 an application for review by Osag Pty Ltd lodged 17 October 2018. The case has not been constituted to a member for review. The last Casemate entry was a request for information made by the Tribunal on 19 October 2018. The applicant in that matter had not responded to the request for information. There has not been a decision in Case number 1830469. There are no grounds that warrant an adjournment even for a short period of time.

16. There is no information before the Tribunal that suggests the applicant is the subject of a nomination approved by the Minister as required by cl.187.233(3) of Schedule 2 to the Migration Regulations.

17. Accordingly the requirements of Cl.187.233 are not met.

    Secondary Applicants

18. The secondary applicants are members of the family unit of the applicant. As the secondary applicants are not  members of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of a visa, cl.187.311 is not satisfied.

19. As cl.500.311 is not satisfied by the secondary applicant, the Tribunal finds the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa are not satisfied. Therefore the Tribunal refused the application by the secondary applicant for a Regional Sponsored Migration Scheme (subclass 187) visa.

    CONCLUDING PARAGRAPH (ALL ISSUES)

20. 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

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

    Mark Bishop
    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.