Gautam (Migration) - [2020] AATA 727

Gautam (Migration) [2020] AATA 727 (18 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ravi Dass Gautam
Mrs Rajni Sharma
Mr Eklavya Gautam
CASE NUMBER:  1811061
HOME AFFAIRS REFERENCE(S):          BCC2016/1856746
MEMBER:Mark Bishop
DATE:18 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 18 March 2020 at 1:46pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – subject of an approved nomination – nominator ceased operation – 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

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).
The applicants applied for the visas on 26 May 2016. 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 (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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of not disclosed in decision record.
The applicant provided a copy of the decision record to the Tribunal dated 10 April 2018.
The delegate refused to grant the visa because on 7 March 2018 because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination lodged by Choudhary Holdings Pty Ltd linked to the visa nomination was refused. The delegate noted the visa applicant was advised of the decision the same day and given an opportunity to comment within 28 days. The applicant did not provide any further information to the Department.
The applicant appeared before the Tribunal on 18 March 2020 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent.
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 evidence of existence of a nomination.
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 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 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.
In evidence the applicant advised the Tribunal he did not have a current nomination and could not provide a copy of a current nomination. The applicant advised the Tribunal the company had closed and he was no longer able to contact the former nominator.
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.
Accordingly the requirements of Cl.187.233 are not met.
Secondary Applicants
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.
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)
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 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
(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.

Details

AGLC: Gautam (Migration) [2020] AATA 727
Case: [2020] AATA 727
Decision Date: 18 March 2020

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, by the applicant, and a related application by secondary applicants. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicants had satisfied the criteria for the grant of the visa.

The primary legal issue before the Tribunal was whether the applicant had provided evidence of an approved nomination that had not been withdrawn, and whether the nominated position remained available. Specifically, the Tribunal considered clause 187.233 of Schedule 2 to the Migration Regulations, which outlines the requirements for a nomination in the Direct Entry stream. This included the need for the nominator to be the prospective employer, the nomination to have been approved and not withdrawn, the absence of adverse information concerning the nominator, the continued availability of the position, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the applicant had not provided evidence of a current nomination and stated that the company had ceased operations, making contact with the former nominator impossible. Consequently, the Tribunal concluded that the requirements of clause 187.233 were not met, as there was no information before it suggesting an approved nomination. As the primary applicant did not satisfy the criteria, the secondary applicants, as members of the family unit, also failed to meet the requirements of clause 187.311.

Accordingly, the Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) (Class RN) visas to the applicants.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 evidence of existence of a nomination. 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 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 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. In evidence the applicant advised the Tribunal he did not have a current nomination and could not provide a copy of a current nomination. The applicant advised the Tribunal the company had closed and he was no longer able to contact the former nominator. 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. Accordingly the requirements of Cl.187.233 are not met.Secondary Applicants 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. 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) 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas.Mark BishopMemberATTACHMENT A187.233(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(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.

Decision

Reasons for decision

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas.Mark BishopMemberATTACHMENT A187.233(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(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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.