Liyanage (Migration)

[2023] AATA 3263

Liyanage (Migration) [2023] AATA 3263 (3 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Savinda Roshadi Liyanage
Mrs Savani Geethika Caldera Hollu Pathirage
Mr Sheven Revon Liyanage

REPRESENTATIVE:  Mr Sanji Caldera (MARN: 0635492)

CASE NUMBER:  2000038

HOME AFFAIRS REFERENCE(S):          BCC2019/5433286

MEMBER:P. Maishman

DATE:3 October 2023

PLACE OF DECISION:  Perth

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

Statement made on 03 October 2023 at 3:11pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – real estate representative – subject of approved position nomination – related nomination application refused – joint hearing of nomination and visa reviews – refusal of nomination application affirmed – no response to invitation to comment – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(1), (3), 187.311

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 29 October 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 Real Estate Representative (ANZSCO 612115).

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 there was not an approved nomination in relation to the position.

6. The applicants appeared before the Tribunal on 13 September 2023 to give evidence and present arguments. The Tribunal held a combined hearing with the applicants sponsor Sisira Real Estate Australia. The Tribunal also received oral evidence from Mr Sisira Malawaraachchi, the authorised contact person for Sisira Real Estate Australia.

7. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal had before it a copy of the Department’s file containing the visa application, the sponsorship form and evidence provided by the applicant to the Department.

10. The review applicant gave the Tribunal a copy of the delegate's decision record with the application for review. The delegate's decision record summarises the background of the visa application.

    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. On 3 December 2019 Sisira Real Estate Pty Ltd applied to the Tribunal (AAT No. 1934252) for a review of the decision of the delegate on 13 November 2019 to refuse its nomination application. On 13 September 2023 the Tribunal affirmed the decision of the delegate to refuse the nomination application.     

14. The Tribunal wrote to the applicants on 13 September 2023 pursuant to s 359A of the Act, inviting them to comment on the information that there was not an approved nomination related to the visa application in writing by 28 September 2023. The invitation advised the applicant the information was relevant because cl 187.233(3) required the nomination referred to in cl 187.233(1) to be approved. The notice advised that this would be the reason to affirm the decision under review because the applicant could not meet the requirements of cl 187.233(3).

15. The Tribunal received no response from the applicants.

16. The Tribunal finds on the facts the nomination by Sisira Real Estate Pty Ltd, being the application referred to in cl 187.233(1) for the nominated position of Real Estate Representative (ANZSCO 612115), has not been approved.

17. Accordingly, the requirements of cl 187.233(3) are not met. 

18. The second and third named applicants have made no claim that they meet the primary criteria for the visa and their applications are made on the basis of being members of the family unit of the first named applicant. As the first named applicant is not the holder of a subclass 187 visa the second and third named applicants cannot satisfy cl 187.311.

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.

    DECISION

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

    P. Maishman
    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.