Gadkari (Migration) - [2023] AATA 1120

Gadkari (Migration) [2023] AATA 1120 (26 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Lalit Dashrath Gadkari
REPRESENTATIVE:  Ms Athina Stephanou (MARN: 0103875)
CASE NUMBER:  1910929
HOME AFFAIRS REFERENCE(S):          BCC2018/938812
MEMBER:Karen McNamara
DATE:26 April 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 26 April 2023 at 1:09pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Accountant (General) – subject of an approved nomination – written invitation under s 359A – ‘Response to Hearing Invitation’ – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant Mr Lalit Dashrath Gadkari (the applicant) a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 27 February 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Accountant (General) ANZSCO 221111.
The decision record provided to the Tribunal, records that the delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, which required the applicant to be the subject of an approved nomination. The delegate found that the nomination lodged by Green Engineering Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs on 8 March 2019.
Accordingly, as the nomination application had been refused, the delegate found that cl. 187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.
The applicant lodged an application for review with the Tribunal on 1 May 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations.
Nomination of a position
Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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 person who will employ the applicant is the person who made the 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.
On 30 March 2023, the Tribunal invited the review applicant under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal on 16 May 2023 at 2:00 pm.
On 5 April 2023, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to his comments or response, be the reason or part of the reason for affirming the decision under review.
The information related to information before the Tribunal that shows on 10 October 2022, the Tribunal dismissed the application for review made by the nominating employer Green Engineering Pty Ltd and for this reason the decision made by the delegate from the Department of Home Affairs is unchanged.
The Tribunal’s letter of 5 April 2023 noted that this information is relevant because the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister (cl.187.233(3)). The letter further stated:
‘ If the Tribunal relies on this information, it may find that the nomination in relation to
you has not been approved and consequently the decision under review would be
affirmed.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 19 April 2023. If the comments or response are in a language other than English, they must be accompanied by an
English translation from an accredited translator.
If you cannot provide your written comments or response by 19 April 2023, you may ask us for an extension of time in which to provide the comments or response. If you
make such a request, it must be received by us by 19 April 2023, and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether
or not the extension has been granted.
An invitation to attend a scheduled hearing was sent to you on 30 March 2023. Please note, however, that if you do not respond to this letter within the date specified or within any extended timeframe, you may lose your right to attend the scheduled hearing and it will be cancelled. The Tribunal may then proceed to make a decision on the review without taking any further action to obtain your views on the information.’
The invitation to comment/respond was sent to the authorised recipient at the last email address provided in connection with the review and advised as stated above, if the comments/response were not provided in writing by 19 April 2023, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s comments and the review applicant would lose any entitlement he may otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.
On 17 April 2023 via email the authorised recipient advised the Tribunal as follows;
‘ Please be advised that we will not be attending the AAT Hearing on the 16th of May 2023; Mr Gadkari will email the AAT the signed completed form.
We apologise for any inconveniences that this may have caused.’
On 17 April 2023, the applicant provided to the Tribunal via email, a completed ‘Response to Hearing Invitation’ form, noting that he will take part in the hearing scheduled for 16 May 2023.
As mentioned previously in this decision, on 5 April 2023, the applicant was invited to comment on the following information
‘ The particulars of the information are:
·On 10 October 2022, the Tribunal dismissed the application for review made by your nominating employer Green Engineering Pty Ltd and for this reason the original decision made by the delegate from the Department of Home Affairs is unchanged.
The above information is relevant because cl.187.233(3) requires that the nomination made in relation to you by your nominating employer has been approved.
The nomination relied on to satisfy cl 187.233 must be the one that was made at the time of the visa application – it is not possible to rely on another nomination. You must have a related nomination to be able to be granted the visa.
If the Tribunal relies on this information, it may find that the nomination in relation to you has not been approved and consequently the decision under review would be affirmed.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 19 April 2023.’
As at the time of this decision, the review applicant has not provided the comments or a response within the prescribed period and no extension has been sought or has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review 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: Hasran v MIAC [2010] FCAFC 40.
The Tribunal has carefully considered whether to afford additional time to the applicant to provide comment as requested in the s.359(a) invitation, or to provide further material in support of their application for review.
In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.
The Tribunal is satisfied that the invitation to provide comment was sent to the correct email address. The invitation was not returned to sender as undeliverable mail. At the time of this decision, the applicant has not provided comment, or a response and the applicant has not made contact with the Tribunal to indicate that a response is forthcoming.
The Tribunal has also taken into account the fact that the implications of not providing the comments/response as requested in the invitation from the Tribunal, were set out and bolded in the Tribunal’s letter of 5 April 2023.
The Tribunal notes that on 17 April 2023, the applicant did complete and send to the Tribunal a completed ‘Response to Hearing Invitation’ form. However, the applicant has not otherwise provided any response to the invitation to comment letter.
By responding to a hearing invitation using the template ‘Response to Hearing Invitation’ form, the applicant cannot be seen as also responding to a written invitation under s 359A or 424A.[1] This is because the template form allows the applicant to notify the Tribunal of any requirements for the hearing but cannot be seen as a ‘reply’ or ‘answer’ directed to the information requested by the Tribunal in a s 359A/424A invitation.[2]
[1] McDonagh v MICMSMA [2022] FedCFamC2G 226 at [53]–[64].
[2] McDonagh v MICMSMA [2022] FedCFamC2G 226 at [63].
In the circumstances, the Tribunal finds the applicant has lost the right to appear before the Tribunal to give evidence and present arguments relating to this review application. The Tribunal, therefore, has decided to proceed to make its decision on the available evidence without taking further steps to obtain the applicant’s comments.
On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.187.233(3) of Schedule 2 to the Regulations.
As the applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.
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
The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.
Karen McNamara
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.