Kumar (Migration)

[2020] AATA 3076

Kumar (Migration) [2020] AATA 3076 (10 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gaurav Kumar

CASE NUMBER:  1905542

HOME AFFAIRS REFERENCE(S):          BCC2017/1254972

MEMBER:Terrence Baxter

DATE:10 June 2020

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 10 June 2020 at 2:52pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Motor Mechanic (General) – no approved nomination – applicant left Australia – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 187.233; 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 (the Act).

2. The applicant applied for the visa on 3 April 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 (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 Motor Mechanic (General).

5. The delegate refused to grant the visa on 27 February 2019 because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations which required him to be the subject of an approved nomination. The delegate found that the nomination lodged by 7STAR INVESTMENTS PTY LTD AFT THE TRUSTEE FOR 7STAR INVESTMENTS PL (the nominator) was refused on 29 January 2019 and that accordingly the applicant did not satisfy cl.187.233(3) and did not meet cl.187.233 as a whole as required.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 8 March 2019.

7. The applicant appeared before the Tribunal by telephone on 3 June 2020 to give evidence and present arguments.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

9. The applicant was represented in relation to the review by his registered migration agent. The representative did not attend the hearing.

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 there is an approved nomination.

    Nomination of a position

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 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.

14. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Motor Mechanic (General) approved, with the applicant as nominee, on 3 April 2017. The nomination application was refused on 29 January 2019 and the nominator did not seek review of that decision with the Tribunal.

15. At the hearing, the Tribunal gave to Mr Kumar, pursuant to the provisions of s.359AA of the Act, particulars of the information regarding the refusal of the nomination application. The Tribunal explained to him that this information was relevant to the requirement that the Minister has approved the nomination referred to in his visa application. The Tribunal explained that the information, if relied upon, could cause the Tribunal to find that he did not meet the requirements of the Regulations, which required that the nomination be approved, and that the decision to refuse his application could be affirmed. Mr Kumar was invited to comment on or respond to the information. He was advised that if he needed time to respond to or comment on the information, he could apply for additional time. He acknowledged this notification but said that he did not need more time.

16. Mr Kumar stated that he had travelled to Australia in 2009 and that he had completed his studies in Australia. He said that he had worked as a motor mechanic in various locations in Australia and that he was probably over-qualified for the position of motor mechanic. He said that he had been legally in Australia and had always paid his taxes and that it was not his fault if his employer did not do the right thing. He said that he did not think that it was fair if other applicants who were not as qualified as him were able to stay in Australia. He said that he was aware that the nomination had been refused and that the reason for refusal was that the nominator had not paid taxes and that this was not his fault.

17. The Tribunal notified the applicant that, irrespective of the reasons for the refusal of the nomination, the refusal created a serious concern for the Tribunal as to whether the visa application could succeed. The applicant said that he understood the effect of the refusal of the nomination application.

18. The Tribunal notes that in response to the hearing invitation issued to the applicant on 15 May 2020, the applicant contacted the Tribunal by email on 23 May 2020 stating that he had travelled to India on 4 January 2020 because his father had passed away. He stated that he was the holder of a Bridging Visa Class C at the time and that he was now not permitted to re-enter Australia. He said that he would attend the hearing by phone from India. He also said that he was not sure what he should do with his visa application. He asked whether he should withdraw the application and said that if he didn’t have any option, he would like to withdraw the application. The Tribunal replied to the applicant on 26 May 2020 advising that it was unable to provide him with migration advice and that if he required information about how to seek advice on his application or the withdrawal of his application, he could visit the Tribunal’s website. At the hearing, the applicant said that he wanted to withdraw the application if he was allowed to do so. He was again advised that the Tribunal could not provide him with advice regarding the application, but that it was his choice whether to withdraw the application. No withdrawal of the application has been received by the Tribunal.

19. The Tribunal notes that the application for nomination for the position of Motor Mechanic (General) has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application.

20. Therefore, cl.187.233 is not met.

21. 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

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

    Terrence Baxter
    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.