KAPOOR (Migration)

[2021] AATA 123

KAPOOR (Migration) [2021] AATA 123 (15 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abhishek KAPOOR

CASE NUMBER:  1824960

HOME AFFAIRS REFERENCE(S):          BCC2018/1008621

MEMBER:W Frost

DATE:15 January 2021

PLACE OF DECISION:  Canberra

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

Statement made on 15 January 2021 at 8:44am

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

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

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 Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (Cth) (Act).

2. The applicant applied for the visa on 2 March 2018. At the time of the 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) (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 ‘Telecommunications Technician’ (ANZSCO 342414) with Virk Saab Pty Ltd.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations in circumstances where the nomination for the aforementioned position had been refused.

6. On 8 December 2020, the Tribunal wrote to the applicant pursuant to s.359A of the Act, in the following relevant terms:

   I am writing in relation to your application for review of the decisions by a delegate of the Minister for Home Affairs (Minister) on 8 August 2018 to refuse to grant the Regional Employer Nomination (subclass 187) visa. The application for review was made by you on 27 August 2018 to the Administrative Appeals Tribunal (Tribunal).

   In conducting the review, the Tribunal is required by section 359A of the Migration Act 1958 (Migration Act) 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 that on 4 December 2020, the Tribunal affirmed a decision made by a delegate of the Minister to refuse the application for approval of the nomination of a position in Australia made by VIRK SAAB PTY LTD under r.5.19 of the Migration Regulations 1994 (Regulations).

   The information before the Tribunal is relevant to the review because the Tribunal may find that, as a result of the above-mentioned decision, clause 187.233(3) of Schedule 2 of the Regulations is not satisfied in relation to your application. Clause 187.233(3) requires that there is an approved nomination of the position. Given the Tribunal’s decision on 4 December 2020 in the nomination application by VIRK SAAB PTY LTD, it appears that the nomination of the position to which your application relates, has not been approved.

   Subject to your comment and response, if the Tribunal relies on this information, it may find that clause 187.233(3) of the Regulations is not satisfied and this would be the reason, or a part of the reason, for affirming the decision under review to refuse your application for approval of a Regional Employer Nomination (subclass 187) visa.

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

   Your comments or response should be received by 22 December 2020. If the comments or response and the information are in a language other than English, they must be accompanied by an English translation from an accredited translator. [emphasis in original]

7. The applicant did not respond to the Tribunal’s invitation.

8. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 22 December 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The review applicant has not provided the comments or response within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is 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. The Tribunal has decided to proceed to make a decision without taking further steps to obtain the comments or response because the applicant was provided with an opportunity to comment or respond to the information and has not done so (including by providing any evidence of an approved nomination in relation to the nominated position) or contacted the Tribunal to seek an extension of time to comment or respond.

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 meets cl 187.233(3) of Schedule 2 of the Regulations.

12. 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.

13. 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 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.

14. The nomination for the position of ‘Telecommunications Technician’ (ANZSCO 342414) made by Virk Saab Pty Ltd was refused by the Department and that decision was affirmed by the Tribunal on 4 December 2020. This information was put to the applicant pursuant to s.359A of the Act as set out above in these reasons. The applicant did not respond to the Tribunal’s invitation. Based on the Tribunal’s decision of 4 December 2020, there is no approved nomination in relation to the nominated position and therefore cl.187.233(3) of the Regulations is not met in relation to this application.

15. 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

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

    W Frost
    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.