Kumar (Migration)

[2019] AATA 925

Kumar (Migration) [2019] AATA 925 (19 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pankaj Kumar

CASE NUMBER:  1825377

HOME AFFAIRS REFERENCE(S):           BCC2017/3199003

MEMBER:R. Skaros

DATE:19 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 19 March 2019 at 2:43pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Musician – subject of an approved nomination – nomination application refused – 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 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 4 September 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 Direct Entry stream, to work in the nominated position of Musician with KC International Consultants 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 because the nomination of the position made by KC International Consultants Pty Ltd in respect of the applicant had not been approved.

6. The applicant provided a copy of the delegate’s decision record which indicates that the nomination was refused by the Department on 4 July 2018.

7. On 13 December 2018, the Tribunal wrote to the applicant noting that the nomination of the position has not been approved and requesting the applicant provide information as to whether the relevant nomination has been approved or if there is a pending application for review of the decision not to approve the nomination. The applicant responded by email on 27 December 2018, stating that he did not have an active nomination.

8. The Tribunal invited the applicant to appear before it by telephone on 12 March 2019 to give evidence and present arguments. Prior to the hearing the applicant wrote to the Tribunal requesting the hearing be postponed for medical reasons. The applicant provided a medical certificate indicating he was not fit for his usual occupation between 11 March 2019 and 13 March 2019. The Tribunal wrote to the applicant indicating that it had considered his request but has decided not to postpone the hearing. The applicant was again reminded of the date and time of the hearing and the number on which the Tribunal would contact him.

9. On the day of the hearing, an officer of the Tribunal unsuccessfully attempted to contact the applicant on his mobile number. After the hearing, the applicant contacted the Tribunal and spoke to a case officer. He explained to the officer that he was not well enough to answer the Tribunal’s call and requested to appear before the Tribunal to give evidence. The Tribunal considered the request and, after the case officer confirmed with the applicant his availability to appear, the Tribunal agreed to reschedule the hearing to 14 March 2019 and the applicant was accordingly notified. 

10. The applicant appeared before the Tribunal on 14 March 2019 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

13. 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. In addition, this criterion also requires that the nomination has been approved.

14. The applicant applied for the visa on the basis of an employer nomination, in which he was identified as the person for the position, made by KC International Consultants Pty Ltd. That nomination, as indicated in the decision record, was refused by the Department. There is no evidence before the Tribunal which indicates that the nomination has been revoked or set aside on review. Furthermore, the applicant indicated that he does not have a nomination.

15. At the hearing, the Tribunal discussed with the applicant the requirements in cl.187.233 and the information before it which suggests he does not meet that requirement. In response, the applicant stated that he wished to apply for a student visa but was advised by his migration agent to lodge an employer nomination visa as they promised they could obtain a nomination for him. He stated that he was advised by the agent that his visa had been granted but later found out that he had only been granted a bridging visa A. He stated that he has tried to contact the migration agent but the agent has not returned his call. He requested the Tribunal give him more time to get another nomination from the agent.

16. The Tribunal explained to the applicant that the provision requiring approval of the nomination has been interpreted by the Courts in such a way that only the nomination made at the time of the visa application can be relied on to satisfy the requirement in cl.187.233.[1]

    [1] see Kaur v MIBP [2017] FCCA 564 where it was held that the nomination relied on to satisfy cl.187.233 must be the nomination which had been made at the time of visa application.

17. The applicant asked if he could have time to contact the representative and get information from him about the nomination. The Tribunal explained to the applicant that the evidence before it, which he appears to be well aware of, is that the relevant nomination has been refused and that in the circumstances, it would not be appropriate for the Tribunal to delay making its decision.

18. The Tribunal has had regard to the evidence before it and acknowledges the difficulties stated by the applicant. The Tribunal has also had regard to applicant’s request for further time to get a nomination, however, for the reasons discussed with the applicant at the hearing, the Tribunal does not consider that there would be any merit in delaying the making of its decision, as a new nomination would not assist the applicant in satisfying the requirement in cl.187.233(3). For these reasons, the Tribunal has decided to proceed to a decision on the information before it.

19. The evidence before the Tribunal indicates that the nomination for the position lodged by KC International Consultants Pty Ltd in respect of the applicant, about which the visa applicant made the required declaration in the visa application, was refused. There is no evidence before the Tribunal to suggest, and the applicant has not claimed, that the decision to refuse the associated nomination was revoked or set aside. In the circumstances, the applicant does not meet the requirements in cl.187.233(3).  Therefore, cl.187.233 is not met.

20. 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

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

    R. Skaros
    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.