Goyal (Migration)

[2018] AATA 4098

Goyal (Migration) [2018] AATA 4098 (22 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gaurav Goyal

CASE NUMBER:  1710077

DIBP REFERENCE(S):  BCC2016/3324763

MEMBER:Warren Stooke AM

DATE:22August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 22 August 2018 at 10:24am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – post office manager – approval of nomination – pending determination of appeal – no evidence of approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19, 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 October 2016. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Post Office Manager [ANZSCO 142115]. 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 visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations and the delegate found that the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa in the Direct Entry stream were not satisfied.

6. The applicant appeared before the Tribunal on 15 August 2018 to give evidence and present arguments.

7. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

8. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 7 October 2016 and that he understood the content of the decision. The applicant was aware of the reasons for the delegate’s refusal of the application.

9. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant has an approved nominated position for consideration of the grant of a visa in accordance with the criteria pertaining to Subclass 187, as set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

12. On 27 June 2018, the Tribunal wrote to the applicant with an Invitation to Comment on or respond to information in the following terms:

    “Case number: 1710077
    27 June 2018

    Dear Mr Goyal

    INVITATION TO COMMENT ON OR RESPOND TO INFORMATION — MR GAURAV GOYAL

    I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa.

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information. The particulars of the information are:

    The associated nomination review for Kartar Family Trust as Trustee for Kartar Family Trust (1706944) has been affirmed.

    This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.

    If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 11 July 2018. 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 11 July 2018, 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 before 11 July 2018 and you must state the reason why the extension of time is required.”

13. On 13 July 2018 the Tribunal received correspondence from the applicant’s representative to advise that as the decision pertaining to the applicant’s nominated sponsor was subject to an appeal a deferral of a decision in the current matter should be considered by the Tribunal. The Tribunal responded to the applicant’s representative on 25 July 2018 with the following advice:

    “RE: REQUEST FOR DEFERRED DECISION

    Further to your correspondence of 13 July 2018, I am writing in relation to the application for review made by Mr Gaurav Goyal in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa to the Kartar Family Trust -Case Number 1706944 and your request that the Tribunal defer this matter pertaining to Mr Goyal Case Number 1710077 pending a determination of an appeal before the Federal Circuit Court of Australia in File Number SYG1932/2018 (Kartar Family Trust - Tribunal Case Number 1706944).

    The Tribunal advises that after serious consideration of your request by Member Stooke AM, the Member asked that we hereby inform you that the Tribunal does not speculate in relation to matters of appeal and considers that it is bound to deal with cases expeditiously and efficiently, as is required by the guidelines of good practice.

    As such, the Tribunal hereby informs you that the decision in the matter pertaining to Mr Goyal - Case Number 1710077 will not be deferred to a time post matters of an appeal before the Federal Circuit Court.

    If you have any questions about this letter, please email mrdivisionaat.cov.au or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”

14. The Tribunal asked the applicant if he had an approved nomination and he stated in evidence: “No haven’t got”. He stated that approval of the nominated position had been refused.

15. The applicant gave evidence that the nomination had been refused on some grounds. He said he had been nominated as a Post Office Manager and he had been working in that position and that he performed all of the duties as set out in the ANZSCO list.

16. Further, the applicant gave evidence that the owner of the business had given evidence in Tribunal Case 1706944 regarding the position, which he realised that did not explain the complete scope of duties.

17. The applicant also provided the Tribunal with a copy of Tribunal Case No. 1419260, which he sought to rely upon to support the status of his position.

    Nomination of a position

18. 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).

19. 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.

20. The  Tribunal has considered the findings of Tribunal Case No. 1419260 and notes that this decision was made on the basis of the pertinent facts applicable in that case, which for the purposes of the current decision does not address the inability of the applicant to produce evidence that supports that the applicant has an approved nominated position. This, as noted herein, is part of the criterion required to satisfy cl.187.233.

21. Given that there is no approved nominated position, in which the applicant can be engaged, the requirements of cl.187.233 are not met.

22. 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

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

    Warren Stooke AM
    Member