Garg (Migration)

[2018] AATA 5530

Garg (Migration) [2018] AATA 5530 (14 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rohit Garg
Mrs Shivani Garg
Master Ryaan Garg
Master Partth Garg

CASE NUMBER:  1725211

DIBP REFERENCE(S):  BCC2016/2861046

MEMBER:Mr S Norman

DATE:14 November 2018  

PLACE OF DECISION:  Sydney

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

Statement made on 14 November 2018 at 11:12am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager – nomination refused – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, Schedule 2, rr 1.13, 5.19, cls 187.223, 187.233, 187.242, 187.311

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 Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 29 August 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

2. The Department delegate’s decision was lodged with the Tribunal.

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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (Mr Rohit Garg  - hereafter the ‘applicant’) is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (ANZSCO – 142111), with an offered salary of AUD$55,000. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

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 referred to in cl.187.233(1) was refused by a delegate of the Minister on 4 August 2017.

6. The applicant appeared before the Tribunal on 15 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bakhash Deep Singh – the ‘Director’ of the nominating business; and Mr Abhi SOOD - the accountant for the nominating business.

7. The applicants were represented in relation to the review by their registered migration agent.

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 the present case is whether the nomination referred to in cl.187.233(1) has been granted.

   Nomination of a position

10. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

11. 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.

12. As noted above, on 4 August 2017 the nomination application lodged by Atlantic Petroleum P/L, being the nomination referred to in cl.187.233(1), and relevant to this case, was refused by delegate of the Minister for Immigration. As that nomination application had been refused, cl.187.233(3) is not met; and the applicant did not meet cl.187.233. The 187 visa was then refused by the delegate.  

13. Next, the delegate then considered whether the visa may be granted within any other stream within this Visa subclass. However, the delegate said that since cl.187.223 was not satisfied, the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa in the Temporary Residence Transition stream were not satisfied. The delegate noted that under that stream the position to which the visa application relates must be nominated and approved under r.5.19(3). Since the correlating nomination did not seek to meet the requirements of and was not assessed under r.5.19(3), the applicant does not meet cl.187.223.

14. Next, the delegate the assessed whether the applicant’s claims met the Agreement stream. However, and again, the correlating position was not nominated by an employer in accordance with a Labour agreement, and the applicant did not meet the requirements of cl.187.242.   

15. Next, the delegate assessed whether any applicant met the secondary criteria in cl.187.311. However, as none of the applicants was a member of the family unit on the person who held a subclass 187 visa granted on the basis of satisfying the primary criteria of that visa, cl.187.311 was not met.

16. With the Tribunal, the applicant lodged:

    ·     evidence of marriage[1]

    ·     IELTS test score reports[2] 

    ·     police clearance certificates[3]

    ·     Indian birth certificates[4]

    ·     Passports[5]

    ·     Evidence of applicant’s Indian education[6]

    ·     Employment contact with Atlantic Petroleum P/L[7] (the nominator’s business)

    [1] Tribunal – folio 11; 35 (reverse side).

    [2] Tribunal – folio 12 (reverse side); and 14. 

    [3] Tribunal – folio 12, 14 (reverse side), folio 37 (reverse side), 38.  

    [4] Tribunal – folio 13, 25 (reverse side). 

    [5] Tribunal – from folio 23; from 34; from folio 40.  

    [6] Tribunal – from folio 24.

    [7] Tribunal – from folio 36.

17. The nominator (Atlantic Petroleum P/L), lodged an online application for a Regional Sponsored Migration Scheme nomination through the Direct Entry Stream. The nominated position was for a Retail Manager (ANZSCO – 142111), with an offered salary of AUD$55,000. The nominee was listed as Rohit GARG (the applicant). The online nomination approval application form listed Portland NSW as the location where the visa applicant would be working.

18. Migration agent submissions dated 26 February 2018, said the nominator was registered in NSW on 18 June 2015; that it operated three fuel stations located at Portland, Lake Cargelligo and Yenda NSW (though at the hearing on 15 October 2015, it was explained that all the three service stations were operating prior to that time – and under different ownership/management). By the same migration agent submissions, it was said the Portland service station west of Lithgow NSW (where it was proposed the visa applicant/nominee would work), had 4 staff. It was also said the nominator’s business now had one director only (Dr Aggarwal – from 9 June 2016 – though at the Tribunal hearing on 15 October it was claimed that Dr Aggarwal was overseas and Mr Bakhash Deep Singh – also a ‘Director’ – would represent the nominator).

19. At other times in the nomination approval process before the Tribunal, the applicant had said the nominated positions were located at Lake Cargelligo, NSW (for which a nomination approval was heard by the same constituted Tribunal – AAT# 1718374) and Yenda, NSW (15km from Griffith).

20. Next, at the Tribunal hearing, I put to the applicant and the nominator, that subject to their comments, the following may be the reason, or part of the reason, for affirming the decision under review (the Tribunal also offered not to finalise its decision prior to COB – 5pm - Monday 29 October 2018 – and the Tribunal said it would consider extending that time if a reasonable request was lodged). That said, the Tribunal said that evidence lodged with the Tribunal by a third party, included that the nominating business (the applicant) ‘is not running the BP Portland service station since November 2016’.[8] It therefore appeared the applicant had not identified a need to employ a paid employee to work in the position under the nominator’s direct control (given the applicant no longer owned/operated the Portland business).

    [8] Tribunal – folio 266.

21. When discussed at hearing, the ‘Director’ (Mr Bakhash Deep Singh), said that it was correct that the nominating business no longer owned or operated the Portland business. However, Mr Singh wanted to place the visa applicant (relating to the nomination application for Portland), as the visa applicant for the prior case (AAT# 1718374) – being the nomination application for the Lake Cargelligo service station (and the visa applicant relating to the Lake Cargelligo case was said to have departed for Canada).

22. After the hearing, and by s.359A letter of 30 October 2018 (issued by email to the authorised recipient), the Tribunal wrote to the applicant and advised that on 30 October 2018, the Tribunal accepted the withdrawal of the nomination application lodged by the applicant’s nominating employer (Atlantic Petroleum Pty Ltd).  The applicant was advised this was relevant because cl.187.233(3) requires the nomination made in relation to the applicant by the nominating employer has been approved. The applicant was also advised that if the Tribunal relied on this information it may find the nomination in relation to the applicant has not been approved and consequently, the decision under review should be affirmed. The applicant was requested to respond in writing by 13 November 2018. No response was received at the time and date of this decision.  

23. That being said, based on the evidence before the Tribunal, I am not satisfied the applicant has met cl.187.233(3). Furthermore, cl.187.233 is not met.

24. 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. Further, and for the same reasons as set out by the delegate, the Tribunal is not satisfied the applicants have met cl.187.311.

    DECISION

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

    Mr S Norman
    Member