Harsh Bala (Migration)

[2020] AATA 5327

Harsh Bala (Migration) [2020] AATA 5327 (15 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Harsh Bala

CASE NUMBER:  1902635

DIBP REFERENCE(S):  BCC2017/4155970

MEMBER:Bridget Cullen

DATE AND TIME OF

ORAL DECISION AND REASONS:         15 June 2020 at 3:20 pm (QLD time)

DATE OF WRITTEN RECORD:                15 October 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – no approved nomination – decision under review affirmed          

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19; Schedule 2, cl 187.233

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 January 2019 to refuse to grant the visa applicant a  Regional Employer Nomination (Permanent) Subclass 187 visa under the Migration Act 1958 (the Act).

2. At the hearing on 15 June 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. 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.

4. The applicant applied for the visa on 8 November 2017. At the time of the application, class RN contained one subclass: subclass 187, the 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 primary criteria must be satisfied by at least one applicant.

5. Applicants seeking to satisfy the primary criteria must meet the common criteria as well as the criteria of one of the two alternative visa streams, the Temporary Resident Transition Stream or the Direct Entry stream.  In the present case, the applicant is seeking the visa in the Direct Entry scheme to work for Aayushman, Pty Ltd T/A Devlish 20. 

6. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the regulations because the nomination lodged by Aayushman Pty Ltd, being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister for Home Affairs. As the appointment was refused, the delegate found that the applicant did not meet cl.187.233(3), and therefore could not meet clause 187.233.

7. The applicant appeared before the Tribunal via telephone on 15 June 2020 to give evidence and present arguments.  The applicant was assisted to give her evidence by an interpreter proficient in the English and Punjabi languages. The Tribunal confirmed with the applicant at the commencement of the hearing that she had completed an advanced diploma and other diplomas whilst in Australia in the English language. 

8. The issue before the Tribunal in this case is whether there is an approved nomination of the applicant that satisfies the requirements of cl.187.233 of the Regulations.

9. Essentially, this clause requires that the position to which the applicant relates be the subject of an application for approval of a nomination in the direct entry scheme located in regional Australia.

10. 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 the nomination, and the nomination has been approved and has not been subsequently withdrawn, and that 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 regulation 1.13A and regulation 1.13B, or it is reasonable to disregard any such information and 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.

11. At the commencement of the hearing and utilising the interpreter, adopting the processes set out in s.359AA of the Act, the Tribunal advised the applicant that the nomination refused in relation to Aayushman Pty Ltd had not been reviewed in the Tribunal.  The Tribunal explained that the relevance of this information was that the decision made by the delegate that the nomination had been refused would stand, and the consequence of the Tribunal relying on this information would be that the applicant did not have a nomination that had been approved in accordance with cl.187.233.  The Tribunal advised the applicant that she could comment on the information, or apply for additional time to comment, and she elected to comment at the time of hearing.

12. The Tribunal had the applicant explain back to the Tribunal what she thought the Tribunal had explained to her in relation to the nomination by Aayushman Pty Ltd having not been reviewed in the Tribunal. Having undertaken this process and heard the applicant’s comments, the Tribunal finds that the application for approval of a nominated position under r.5.19(4) of the Regulations in respect of the applicant was refused by the Department and has not been reviewed in the Tribunal.

13. The applicant explained to the Tribunal that she was misguided by her agent. The Tribunal does not have any regulatory powers in relation to misinformation provided to applicants by their agents, but can advise the applicant that the appropriate avenue would be to raise her concerns with OMARA, the office of the Migration Agents Regulatory Authority. 

14. On the evidence before the Tribunal, the Tribunal is not satisfied at the time of decision that there is a relevantly approved nominated position in relation to the applicant as required by cl.187.233(3). It therefore follows that cl.187.233 is not met.

15. The applicant has only sought to satisfy the criteria for the subclass 187 visa in the Direct Entry scheme. No claims have been made in respect of the other visa streams. As the requirements that must be met by the person seeking the visa in the Direct Entry scheme have not been met, the decision under review must be affirmed, and the decision is that the Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (class RN) visa.

    DECISION

16. The Tribunal affirms the decision under review.

    Bridget Cullen
    Member