Gonawala (Migration)

[2019] AATA 3215

Gonawala (Migration) [2019] AATA 3215 (31 July 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs Urvi Nishant Gonawala

Mr Nishant Hemant Gonawala Mr Veeraj Gonawala

CASE NUMBER:  1620365

HOME AFFAIRS REFERENCE(S):          BCC2015/3791973

MEMBER:  Michelle East

DATE:  31 July 2019

PLACE OF DECISION:  Perth

DECISION:  The Tribunal affirms the decisions not to grant the

applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 31 July 2019 at 12:07pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) – subject of an approved nomination – nomination application refused – 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 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).

2. The applicants applied for the visas on 10 December 2015. 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 Retail Manager (General).

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 applicant was not the subject of an approved nomination.

6. The applicants’ nominator is The Trustee for the Lalani Brothers Family Trust. The nominator applied for a review of the decision to refuse to approve the nomination and on 8 July 2019 this Tribunal affirmed the decision to refuse the nomination.

7. The Tribunal wrote to the applicant on 8 July 2019 pursuant to section 359A of the Act inviting their comments on, or response to, the information that on 8 July 2019 the Tribunal affirmed the decision to refuse to approve the nomination application made by The Trustee for the Lalani Brothers Family Trust. The Tribunal explained that this information is relevant because if relied on the Tribunal would find that the applicant does not meet cl.187.233(3) and it would affirm the Department’s decision. On 22 July 2019 the applicant’s representative responded stating, ‘Please be informed that the applicant does not have further information to be provided. Please kindly make the decision based on the information provided’.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is the subject of an approved nomination.

    Nomination of a position

11. 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

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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.

1. 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.

1. On the basis of the evidence before it, the Tribunal finds the nomination made by The Trustee for the Lalani Brothers Family Trust, the nomination referred to in cl.187.233(1), has been refused. Therefore the nomination has not been approved and cl.187.233(3) is not met.

2. Therefore, cl.187.233 is not met.

3. 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.

4. In relation to the second and third named applicants the Tribunal notes they applied on the basis of being a member of the first named applicant’s family unit. As the Tribunal has found the first named applicant does not meet cl.187.233, the second and third named applicants are also unable to meet the requirements of cl.187.311 which requires that they are a member 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 the visa.

   DECISION

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

   Michelle East
   Member

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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.

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