HIMANSHU (Migration)

[2020] AATA 3347

HIMANSHU (Migration) [2020] AATA 3347 (2 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Himanshu

CASE NUMBER:  1928390

HOME AFFAIRS REFERENCE:               BCC2018/967330

MEMBER:Lilly Mojsin

DATE:2 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 2 July 2020 at 10.00 am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – 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 Home Affairs 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 28 February 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 (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 review, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of ‘Cook’ (ANZSCO 351411).

5. The delegate refused to grant the visa 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, that had been made by Varinder Singh Toor [ABN 99 242 626 703].

6. The applicant appealed that decision to this Tribunal, annexing a copy of the Department decision to the review application.

7. The applicant appeared before the Tribunal on 25 June 2020 and 5 July 2020 to give evidence and present arguments.

8. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant.

9. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

10. The applicant consented to the hearing being conducted by telephone.

11. The Tribunal discussed with the applicant that he did not have an approved nomination. The applicant’s advisor indicated that he had not received notice of the Tribunal decision regarding the nomination application. The Tribunal drew to his attention that the Tribunal had made its decision that it did not have jurisdiction. The Tribunal adjourned the hearing for 7 days in order for the applicant’s advisor to make his own enquiries.

12. At the adjourned hearing the advisor acknowledged that the application was lodged out of time.

13. The Tribunal put to the applicant, pursuant to s.359AA, information that was the reason or part of the reason for affirming the decision under review. The Tribunal explained that the applicant could seek an adjournment to respond or respond in writing or respond immediately. The Tribunal put to the applicant that Varinder Singh Toor lodged an appeal to the Tribunal[1] on 13 August 2019. On 13 January 2020 the Tribunal found that it did not have jurisdiction because the application for review was not lodged within the relevant time limit, which is 21 days from the day on which the applicant , Varindar Singh Toor, is taken to have been notified of the primary decision. The Tribunal indicated to the applicant that this information was relevant because without an approved nomination the applicant was ineligible to meet cl.187.233 and satisfy the primary criteria for the grant of the visa. The applicant responded stating that he wished to have the Tribunal review both decisions as the lateness in applying for review was because of the actions of a previous migration agent.

    [1] AAT 1922461

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. Clause 187.233 as applicable in this review 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 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.

15. 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.

16. The applicant’s advisor, by submission dated 18 June 2020, explained circumstances regarding the finding of invalidity by the Tribunal[2] of the review application made by Varinder Singh Toor, the nominee, for approval of a nomination of a position. The advisor indicated that the applicant was not aware of the decision being made, due to the actions of his previous migration agent. The advisor requested the Tribunal accept the application for review of the Department Decision[3], regarding the refusal by the Department to approve the nomination of a position by Varinder Singh Toor, made on 13 August 2019.

    [2] AAT 1922461

    [3] BCC 2018/946328

17. The Tribunal notes that this application is a review of Department decision BCC2018/967330 only. The Tribunal does not have jurisdiction to review the decision of the Tribunal[4] regarding the application made by Varinder Singh Toor for approval of a nomination of a position.

    [4] AAT 1922461

18. The Tribunal notes that the applicant’s advisor has submitted documents relating to the business owned by Varinder Singh Toor. The Tribunal has considered these documents but none of these documents are relevant to the issue before the Tribunal ie. whether the applicant can satisfy the primary criteria for the grant of the visa.  

19. The Tribunal is satisfied that the position to which the application relates is not the subject of an approved nomination.

20. Therefore, cl.187.233 is not met.

21. 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

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

    Lilly Mojsin
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.