Khetarpal (Migration)

[2023] AATA 1744

Khetarpal (Migration) [2023] AATA 1744 (7 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohit Satish Khetarpal
Ms Shweta Mohit Khetarpal

CASE NUMBER:  1930340

HOME AFFAIRS REFERENCE(S):          BCC2019/1327693

MEMBER:Mary Sheargold

DATE:7 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 07 June 2023 at 11:25am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – ICT Business Development Manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

CASES
Singh v MIBP [2017] FCAFC 105

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 15 March 2019. 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of ICT Business Development Manager, ANZSCO 225212.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the nomination application made by AVMCO Pty Ltd for the position of ICT Business Development Manager had not been approved.

6. On 26 April 2023, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to provide comments in writing on information that the Tribunal considered would be part of the reason for affirming the decision under review.  That adverse information was that the application for approval of the nominated position of ICT Business Development Manager made by AVMCO Pty Ltd was refused by a delegate of the Minister of Home Affairs, and that the nominator had applied to the Tribunal for review of that decision but it was recently affirmed by the Tribunal.  The letter outlined that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

7. The applicants were invited to provide their written comments by 10 May 2023.  On 8 May 2023, the first named applicant responded and stated “You can make an appointment through call regarding this matter, please let me know what time and date it will be.”  The Tribunal considered this an indication that the first named applicant wished to provide full comments during a telephone hearing. 

8. The applicants were invited to a hearing to be conducted via MS Teams, noting their regional Queensland location and the Tribunal being constituted in Melbourne.  The applicants appeared before the Tribunal by telephone (at their election) on 6 June 2023 to give evidence and present arguments.

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 there is an approved nomination to demonstrate that the first named applicant meets the requirement in cl.187.233(3).

    Nomination of a position

11. 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.

12. 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.

13. At the hearing, the first named applicant explained that he believed his nomination application had been refused because his sponsor had not provided all the required documentation to the Department, and that since the time of the refusal, he has lost contact with the owner of that business.  He told the Tribunal that in March 2021, he purchased a newsagency business in Toowoomba, Queensland, which he still owns and operates.  The family, who now have a 2 year old child (not included in this application) applied for Subclass 491 visas on 1 June 2022 and await the outcome of that application from the Department.

14. The Tribunal explained that it was essential to have an approved nomination from the nominating employer to meet the requirements of cl.187.233(3), and the first named applicant indicated that he understood both this, and the fact that he did not have that approved nomination in place.

15. The nominator’s nomination application was refused by the Department, and the Tribunal affirmed the delegate’s decision. At the hearing, the review applicant admitted he does not have an approved nomination to support his application. As the nomination application for the position to which the applicant’s Subclass 187 visa relates has not been approved, it follows that the first named applicant does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations.

16. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105 where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1).  It is to that act that the via applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind.  The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

17. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, he cannot overcome his current inability to meet cl.187.233(3) in relation to his application.  The nomination by AVMCO Pty Ltd was specifically linked to his visa application, and that nomination was not, and now cannot be, approved.

18. Therefore, cl 187.233(3) is not met.

19. 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.

20. Pursuant to cl.187.311, the Tribunal must also affirm the decision to refuse to grant a Subclass 187 visa to the secondary applicant as she is not the member of a family unit of a person who holds a Subclass 187 visa, and there is no evidence that she meets the primary criteria in her own right.

    DECISION

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

    Mary Sheargold
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.