Kamra (Migration)

[2023] AATA 1405

Kamra (Migration) [2023] AATA 1405 (16 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aadil Kamra

REPRESENTATIVE:  Mr Derrick Peters (MARN: 1175659)

CASE NUMBER:  1920501

HOME AFFAIRS REFERENCE(S):          BCC2017/4788331

MEMBER:Alan McMurran

DATE:16 May 2023

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 16 May 2023 at 4:36pm

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 – 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 lodged 26 July 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 25 July 2019 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Mr Aadil Kamra, a citizen of the Republic of India, applied for the visa on 14 December 2017. 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 (Cth) (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (General) (ANZSCO 142111).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations. The delegate refused the visa application because the related nomination by the nominator, Unique Spice Pty Ltd (“the nominator”) was refused by the Department on 11 June 2019.

6. On 19 April 2023, the Tribunal sent a letter to the applicant inviting him to provide information. The letter informed the applicant that the nomination had been reviewed by the Tribunal on 13 September 2022 and the Department decision affirmed. At his request, the applicant was given an extension of time to provide any written submissions or information up to the date of hearing.

7. The applicant appeared in a telephone hearing before the Tribunal on 16 May 2023 to give evidence and present arguments. The Tribunal received oral evidence from the applicant, who gave his evidence in English. The applicant indicated he was ready to proceed.

8. The applicant was represented in relation to the review. The representative was also present for the telephone hearing.

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 a nomination in the Direct Entry stream which the Minister has approved.[1]

    [1] subregulation187.233(3)

11. Importantly, the Tribunal has no discretion in relation to the application of the Act and Regulations for the requirement that an approved nomination for the position has been given.

12. In order for the visa application to go forward, the position for which the visa applicant has been nominated must be the subject of an approved nomination

    Nomination of a position

13. 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 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.

14. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 reg 1.13A and reg 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.

15. At the hearing, the Tribunal explained that the nominator had been deregistered. The Tribunal had determined on its review on 13 September 2022[2], requested by the nominator, that it had no jurisdiction to consider the refusal of the nomination where the application related to a non-existent entity. Therefore the nomination review was unsuccessful.

    [2] Tribunal case 1916507

16. The applicant said he was aware the business had been shut down by the owner, after a fire had disrupted the enterprise. He said he had been paid all his entitlements and had ‘paperwork’ to prove he was an employee, such as his payslips and banked salary receipts.

17. The Tribunal reminded him that the issue for this review was his visa application, and not the nomination or the nominator’s circumstances which had already been decided. He said he understood but just wanted to explain the situation concerning the loss of his employment which had come about due to no fault on his part.

18. The Tribunal asked if either the applicant or the representative wished to make any further submissions. No further submissions were forthcoming and no request for any extension of time or adjournment was sought.

19. On the available information from the Department and the Tribunal, the Tribunal finds that the Department refused the nomination application by the nominator on 11 June 2019. The decision was reviewed by the Tribunal on 13 September 2022. The Tribunal made a decision affirming the decision under review to refuse the nomination.[3]

    [3] Tribunal case 1916507

20. The Tribunal finds that the applicant is aware of those circumstances and has made no submissions relevantly to the issue of the visa refusal, which is the subject of this review. The Tribunal has confirmed for the applicant that in the course of this review it is not considering the nomination refusal and subsequent review by the Tribunal, which has been finalised.

21. The Tribunal finds on the available information that there is no nomination for the nominated occupation of Retail Manager (General) (ANZSCO 142111) by the nominator in favour of the applicant which the Minister has approved.

22. The Tribunal is not aware of any appeal against the review of the decision refusing the nomination, or any further application by the nominator, or indeed any other application concerning the applicant for the nominated position. The applicant has not requested any extension of time to make submissions or to continue with this review.

23. As noted above, the Tribunal has no discretion when conbsidering the visa refusal to waive the requirement for there to be a related approved nomination. The Tribunal finds that this application for the visa is related to the refused nomination application and for the position nominated and cannot succeed where there is no approved nomination for that position.

24. The Tribunal finds accordingly that cl 187.233 is not met.

    Conclusion

25. 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

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

    Alan McMurran
    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.