Gharu (Migration)

[2022] AATA 4536

Gharu (Migration) [2022] AATA 4536 (4 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Gaurvi Gharu

CASE NUMBER:  1915267

HOME AFFAIRS REFERENCE(S):          BCC2018/4656914

MEMBER:Amanda Mendes Da Costa

DATE:4 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 4 November 2022 at 12.27pm

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – ICT Support Technicians nec – subject of an approved nomination – no response to s.359A invitation – email address disabled – decision under review affirmed 

LEGISLATION 
Migration Act 1958 (Cth), ss 65, 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

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 applied for the visa on 23 October 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 ICT Support Technicians nec - ANZSCO Code 313199.

5. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations because she was not the subject of an approved nomination.

6. In making its decision, the Tribunal has considered the information in both the Departmental and Tribunal files.

7. On 2 September 2022 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 25 October 2022.

8. The invitation was sent to the last (email) address provided in connection with the review.  On 2 September 2022 the Tribunal received a message via email from the server that the message sent to the applicant by the Tribunal on that date was undeliverable because the applicant’s mailbox had been disabled.

9. On 5 October 2022 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting it 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.

10. The Tribunal advised that the particulars of the information were that:

    ·The application for approval of the nominated position made by CYBENE TECHNOLOGIES PTY LTD (the nominator) was refused by a delegate of the Minister.

    ·The nominator sought a review of that decision but on review, the decision was affirmed by the Tribunal.

    ·This means that the nominator’s application for the nominated position has not been approved.

11. The Tribunal further advised that the above information was relevant to the review because it was a requirement for the grant of the visa that the position specified in her visa application was the subject of an approved nomination.  The Tribunal explained that if it relied on this information in making its decision, it may find that the position specified in her visa application was not the subject of an approved nomination.  This would mean that she did not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review.

12. The applicant was requested to provide any such comments or response (in writing) by 19 October 2022.

13. The invitation was sent to the last (email) address provided in connection with the review and advised that, if the information was not provided in writing by 19 October 2022, the Tribunal may make a decision on the review without taking further steps to obtain to the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

14. On 5 October 2022 the Tribunal received a message via email from the server that the message sent to the applicant by the Tribunal on that date was undeliverable because the applicant’s mailbox had been disabled.

15. The applicant has not provided the comments or response within the prescribed period (or at all) and no extension has either been sought or granted.  In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal.  The effect off s.363A of the Act is that if an 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 decided to proceed to decision without taking further steps to obtain the information.

16. The applicant has not requested additional time to provide evidence and present arguments, relating to the review application.

17. Although the applicant has not requested this, the Tribunal has considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support her application for review.

18. In doing so, the Tribunal has considered the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. 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. However, the address provided by the applicant to the Tribunal for the purpose of her review application has been disabled and the applicant has not provided any further address at which she can be contacted. Nor has the applicant contacted the Tribunal regarding her review application since lodging the review application.

19. The Tribunal has considered the fact that the applicant has been aware since the delegate’s decision on 24 May 2019 of the reasons for the nomination application being refused (approximately 42 months ago).  The Tribunal also notes that the applicant is responsible for providing it with an address at which communications can be sent to her for the purpose of the review.  The applicant is also responsible for updating the Tribunal with any change of address.

20. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to provide information addressing the central issues arising in the application for review, or in which to request an extension of time to provide that information but has not either provided the information or requested an extension of time.  Accordingly, the Tribunal cancelled the hearing on 25 October 2022 and has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that she meets the relevant criteria under cl 187.233.     

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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

23. 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.

24. 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.

25. Based on the material before it, the Tribunal finds that the application for approval of the nominated position for the applicant, made by CYBENE TECHNOLOGIES PTY LTD was refused by a delegate of the Minister and on review, the Tribunal subsequently affirmed that decision.  There is no evidence before the Tribunal that there is an approved nomination for the applicant by another sponsor.

26. Accordingly, the Tribunal is not satisfied that the position specified in the applicant’s visa application is the subject of an approved nomination.

27. Therefore, cl 187.233 is not met.

28. 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

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

    Amanda Mendes Da Costa
    Member

    
    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.