Joshi (Migration)

[2019] AATA 1837

Joshi (Migration) [2019] AATA 1837 (13 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Unnati Joshi
Mr Puran Shrestha

CASE NUMBER:  1700866

HOME AFFAIRS REFERENCE(S):           BCC2016/713554

MEMBER:Nicola Findson

DATE:13 June 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 13 June 2019 at 2:07pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – no response to s 359A letter – not entitled to appear before the Tribunal – Direct Entry stream – Café or Restaurant Manager – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

CASES
Hasran v MIAC [2010] FCAFC 40

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 19 February 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 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 Café or Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no approved nomination.

6. No hearing was held in this matter.  A letter was sent to the applicants via their authorised representative on 24 May 2019 by email.  This letter followed a decision in a matter (1620120), which related to the nomination of the relevant position by the applicant’s employer.  The particulars of the information in the letter, and its relevance to the review, were provided pursuant to section 359A of the Act:

   “The particulars of the information are:

   ·     On 23 May 2019, the Tribunal made a decision to affirm a decision to refuse a nomination in respect of JK Holding WA Pty Ltd ATF Shahi Family Trust. Consequently, the decision made by the Department of Immigration and Border Protection on 22 November 2016, to refuse the nomination stands.

   In relation to the primary visa applicant, Ms Unnati Joshi

   This information is relevant to the review because in deciding whether Ms Joshi satisfies the requirements of clause 187.233(3) of Schedule 2 of the Regulations, that clause requires that the Minister has approved the nomination (being the nomination referred

   to in paragraph 187.233(1)).

   If the Tribunal relies on this information in making its decision, it will make a finding that there is no approved nomination in which Mrs Joshi is the nominee for the purpose of cl.187.233. This may lead the Tribunal to find that that criterion is not met. This is an impediment to the visa being granted by the Department of Immigration and Border Protection for Mrs Joshi.

   Subject to your comments or response, this would be the reason, or a part of the

   reason, for the Tribunal affirming the decision under review.

   In relation to the secondary visa applicant, Mr Puran Strestha

   The information is relevant to the review because cl.187.311 requires that the secondary applicant is a member of a family unit who holds a subclass 187 visa on the basis of satisfying the primary criteria for the grant of the visa. As Ms Joshi would not satisfy the primary criteria this would mean that Mr Strestha would not satisfy the secondary criteria for the visa, namely cl.187.311.

   Subject to your comments or response, this would be the reason, or a part of the reason, for the Tribunal affirming the decision under review.”

7. A response or comments were invited in writing by 7 June 2019.  However, the Tribunal did not receive a response to its section 359A letter.

8. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 7 June 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The review applicants have not provided the comments within the prescribed period and no extension has been granted.  In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if a review 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.

10. Consequently, section 359C of the Act provides that the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.  In the circumstances, the Tribunal has decided to proceed to make a decision without taking further steps to obtain the applicant’s views on the information.

11. 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.

12. 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.

13. On the basis of the information before it, the Tribunal finds that on 23 May 2019, the Tribunal affirmed a decision of the Department to refuse a nomination in respect of JK Holding WA Pty Ltd ATF Shahi Family Trust, in which the applicant is the nominee.

14. The Tribunal finds that there is no approved nomination in which the applicant is the nominee, for the purpose of cl.187.233.  That criterion is not met, which is an impediment to the grant of the visa.

15. Therefore, cl.187.233 is not met.

16. 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.

17. The Tribunal also finds that as the applicant does not satisfy the primary criteria for the grant of the visa, the second-named applicant does not satisfy the secondary criteria for the visa.  Consequently, he does not satisfy cl.187.311 and the decision under review must be affirmed in respect of him.

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

    Nicola Findson
    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.