KUMAR (Migration)

[2020] AATA 1964

KUMAR (Migration) [2020] AATA 1964 (29 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr PARVEEN KUMAR
Mrs Ritu

CASE NUMBER:  1934619

HOME AFFAIRS REFERENCE(S):          BCC2019/4337065

MEMBER:Peter Emmerton

DATE:29 May 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 29 May 2020 at 2:11pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – employer’s position nomination refused – no application for review of refusal – current application for another visa subclass, which needs to be lodged offshore – unable to travel due to coronavirus restrictions – 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 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 (the Act).

2. The applicants applied for the visas on 30 August 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 (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 Contract Administrator.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination was not approved.

6. The applicant appeared before the Tribunal on 29 May 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the nomination has been approved.

9. On 24 October 2019, the nomination lodged by the applicant’s sponsoring employer, The Trustee For NT Operations Management Solutions was refused.  In a separate decision, the Department refused Mr Parveen Kumar’s subclass 187 visa application because the nomination made by The Trustee For NT Operations Management Solutions was not approved.

10. The Trustee For NT Operations Management Solutions did not seek a review at the Tribunal, therefore the nominator’s application for the nominated position has not been approved.

11. On 20 April 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised him that….. ‘The application for approval of the nominated position made by THE TRUSTEE FOR NT OPERATION MANAGEMENT SOLUTIONS (the nominator) was refused by a delegate of the Minister for Immigration. The nominator did not seek a review at the Tribunal. This means that the nominator’s application for the nominated position has not been approved.’

12. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the relevant nomination, he cannot satisfy the provision at clause 187.233(3) of the Migration Regulations.

13. The applicant was advised that if he cannot satisfy cl.187.233 the Tribunal would affirm the decision of the Department of Home Affairs refusing the visa.

14. The applicant was invited to provide a written response by 4 May 2020. The letter advised the applicant that if he did not comment or respond within the period allowed or extended, the Tribunal may make a decision on the review without taking any further action.

15. The applicant responded to the letter on 1 May 2020, requesting a 2-month extension of time to provide the information because their representative was overseas and they were having problems contacting him because of the Covid 19 pandemic. The Tribunal considered this request and granted an additional 7 days for a response on top of the original 14 days originally granted as global communications were still functional.

16. The applicant stated in the hearing that they were not represented by a migration agent.

17. The review applicant did provide the response within the stipulated time period in which they stated ….. ‘I am now aware of the difficulty in proceeding due to the nomination being refused.

    Notwithstanding this I believe there are compelling and compassionate circumstances in regards to this case as follows:

    1.The Nominator was refused because of circumstances outside of my eligibility.

    2. I have since lodged a subclass 491 nomination application to the Tasmanian Government
    with the support of a job contract with a new employer, with a claim of 65 points being the
    pass mark.

    3. My RMA has advised the State Government to place the current nomination application
    decision on hold as a successful outcome would require my departure to an offshore
    location to lodge the visa application.

    4. As you are aware I am unable to depart Australia due to Coronavirus restrictions therefore
    my situation is one of frustration due to the above outlined circumstances
    .
    5. Confirmation has been received by the Tasmanian Government that they will suspend
    processing my nomination application due to this predicament. Additionally the Tasmanian
    Government has announced on their website that applicants in similar circumstances with
    the AAT will not be assessed until the travel restrictions have been lifted.

    The Corona virus has brought about a situation outside of my control and I respectfully request that the AAT proceedings be delayed until a later date.’

18. Whilst the Tribunal has some sympathy for the circumstances in which the visa applicant has been placed, it has decided to proceed with the hearing as it is aware that the Australian Government has committed to adjust its’ procedures in order to accommodate the practical circumstances faced by visa holders in relation to restricted travel during the current Covid 19 pandemic and applicant’s inability to travel from Australia.  It also notes that the 491 application is not related to the current 187-visa which is the only matter currently under review.

    Nomination of a position

19. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

20. 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.

21. The Tribunal questioned the visa applicant as to whether he was able to present any evidence to the Tribunal that substantiated that his visa was associated with an approved nomination. He responded in the negative. Statements by the applicant in writing prior to the hearing and verbally during the hearing made it clear to the Tribunal that the applicant understood that without an approved nomination linked to his visa, his 187 visa could not be approved.

22. There is no evidence before the Tribunal that an approved nomination associated with this Regional Employer Nomination (Permanent) (Class RN) visa application has been granted.

23. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 187.233(3).

24. Therefore, cl.187.233 is not met.

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’s Regional Employer Nomination (Permanent) (Class RN) visa.

    Peter Emmerton
    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.