Kumar (Migration)

[2022] AATA 2899

Kumar (Migration) [2022] AATA 2899 (13 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Kumar

REPRESENTATIVE:  Miss Vanessa De Pretis (MARN: 1388116)

CASE NUMBER:  1906388

HOME AFFAIRS REFERENCE(S):          BCC2017/1166694

MEMBER:De-Anne Kelly

DATE:13 June 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 13 June 2022 at 12:58pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Retail Manager – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 187.223; r 1.13

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) (the Act).

2. The applicant applied for the visa on 27 March 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.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the employer nomination by Shiv Blessings Pty. Ltd was refused by the delegate being the application referred to in cl.187.233(1).

6. The applicant appeared before the Tribunal on 30 November 2021 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review. The hearing was adjourned because the agent advised that they had provided further documents related to the employer nomination however these had been uploaded to the related visa applicants account and had not been considered by the Tribunal at that time. The hearing was resumed on 3 February 2022. The applicants were assisted by an Urdu interpreter.

7. The applicant was represented in relation to the review by Ms Vanessa De Pretis.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Interpretation

9. On a number of occasions, the Tribunal asked if the interpretation was clear and understood and each occasion the response was it was clear and there was nothing “difficult”. The answers to enquiries from the Tribunal were in context and again indicated the interpretation was clear and unambiguous.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets cl.187.233(3) which provides as follows.

    3) The Minister has approved the nomination.

    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 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 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. The Tribunal wrote to the applicant on 17 May 2022 requesting a response by 31 May 2022, under s359A of the Migration Act 1958 inviting comment on information that the employer nomination refusal by Shiv Blessings Pty. Ltd was affirmed on 6 April 2022 and as such there was no approved employer nomination to satisfy cl.187.233(3) and this may be part or all of the reason to affirm the decision under review.

14. On 31 May 2022, the applicant requested an extension of time on that basis that the visa applicant was overseas, and the agent was unwell. An extension was granted to 8 June 2022.

15. The applicant did not make any further submissions and did not reply to the invitation to comment.

16. The Tribunal finds there is no approved employer nomination to satisfy cl.187.233(3)

17. Therefore, cl 187.233(3) and cl187.233 are not met.

18. 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

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

    De-Anne Kelly
    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

    (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.