Mangukiya (Migration)

[2021] AATA 3424

Mangukiya (Migration) [2021] AATA 3424 (27 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Darshankumar Devrajbhai Mangukiya

CASE NUMBER:  1911928

HOME AFFAIRS REFERENCE(S):          BCC2017/1944679

MEMBER:Katie Malyon

DATE:27 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 27 August 2021 at 4:59 pm

CATCHWORDS

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

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

CASES

Singh v MIBP [2017] FCAFC 105

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, Indian national Mr Darshankumar Devrajbhai Mangukiya, applied for the visa on 1 June 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).  Applicants seeking to satisfy the primary criteria must meet the 'Common criteria' as well as the criteria of one of 2 alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.

   Background

4. In the present case, Mr Mangukiya is seeking the visa in the Direct Entry stream to work in the nominated position of Wholesaler ANZSCO 133312 with Krishna Group Pty Ltd (the Company) at its business in Maroochydore.

5. The delegate refused to grant the visa on the basis Mr Mangukiya did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application lodged by the Company on 1 June 2017 was refused by the Department. A copy of the delegate’s decision refusing Mr Mangukiya‘s Subclass 187 visa application was provided to the Tribunal.

6. On 11 April 2019, the Company sought review of the delegate’s refusal of its nomination application.  However, on 6 April 2021, the Tribunal affirmed the Department’s decision not to approve the nomination made by the Company in respect of the position of Wholesaler for Mr Mangukiya.

7. Subsequently, on 4 August 2021, the Tribunal wrote to Mr Mangukiya pursuant to s.359A of the Act inviting him to comment on, or respond to, information which would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse his Subclass 187 visa application. The Tribunal informed Mr Mangukiya that information before the Tribunal indicates he declared in his Subclass 187 visa application that he had been nominated by the Company. It also informed him that on 6 April 2021 the Tribunal affirmed the Department’s decision not to approve the nomination made by the Company in respect of the position of Wholesaler for Mr Mangukiya. Accordingly, there is currently no approved nomination by the Company in respect of the Mr Mangukiya.

8. The Tribunal explained the relevance of this information is that the position to which Mr Mangukiya’s visa relates is not the subject of an approved nomination made by the Company and, following the decision of the Full Federal Court of Australia in Singh v MIBP [2017] FCAFC 105 on 14 July 2017 (Singh’s case), this is a ‘once off’ process.[1]  The Tribunal noted the Court in Singh’s case observed that even a new nomination in respect of the same position made by the same employer could also not be relied upon to meet these Schedule 2 criteria because the new nomination would not be the one in relation to which Mr Mangukiya made the declaration in his visa application. It requested a response by 18 August 2021, failing which Mr Mangukiya would lose the entitlement to attend the hearing scheduled for 25 August 2021.

   [1] Singh v MIBP [2017] FCAFC 105, Mortimer J at [90]

9. On 17 August 2021, the Tribunal received a response to its s.359A letter. In his written response, Mr Mangukiya acknowledged that the Company’s nomination was not approved and, hence, his Subclass 187 visa application was not approved. He states that the Company ‘did not fulfil criteria because they failed to complete norms and criteria for the nomination’. Mr Mangukiya requests sometime to afford him the possibility to find another employer which is suitable and one who recognises his knowledge, work experience and study. He adds that, in this pandemic situation, he is trying his best to find out what is best for him as it impacts his future. He does not want to take any kind of risk and speedy decision which will impact his future growth.

   Hearing

10. Mr Mangukiya appeared before the Tribunal on 25 August 2021 by way of teleconference to give evidence and present arguments.

11. At the commencement of the hearing, the Tribunal summarised the information in its s.359A letter. It observed that it has no discretion and, as confirmed by the decision in Singh’s case referred to above, a nomination for a Subclass 187 visa is a once-off process. Accordingly, since Mr Mangukiya is not the subject of an approved nomination, it must affirm the delegate’s decision to refuse his Subclass 187 visa. Mr Mangukiya said that he understood the situation and echoed the comments outlined in his statement provided in response to the Tribunal’s s.359A letter referred to above at para [9]. He added that many small businesses on the Sunshine Coast have been adversely impacted by the COVID-19 pandemic and, having spent many years in Australia, he is trying his best to find an employer to sponsor him.

12. The Tribunal asked Mr Mangukiya about his work.  He said he left the Company after the Tribunal’s decision in April 2021 and has been looking for work since.  

13. In relation to his request for additional time, The Tribunal noted that s.2A of the Administrative Appeals Tribunal Act 1975 requires it to make decisions which are, amongst other things, quick.  It also observed that it was not minded to delay its decision having regard not only to the passage of 4½ months since the Tribunal affirmed the delegate’s refusal of the Company’s nomination application on 6 April 2021 but also, the implications of the decision in Singh’s case that a RSMS nomination is a “once-off” process for a Subclass 187 visa application and, further, the Tribunal’s express request in its hearing invitation for Mr Mangukiya to lodge with the Tribunal any additional documentation or information that he may wish to rely upon during the hearing.  Mr Mangukiya acknowledged the Tribunal’s comments in this regard. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether Mr Mangukiya is the subject of an approved nomination as required by cl.187.233(3) of Schedule 2 to the Regulations.

    Nomination of a position

16. Clause 187.233 of Schedule 2 to the Regulations as applicable in this case is set out in full in the Attachment to this decision. Essentially, it requires that the position to which the visa 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 Subclass 187 visa application and is required by para 1114C(3)(d) of Schedule 1 to the Regulations for the purposes of making a valid visa application.

17. In addition, cl.187.233 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 (emphasis added);

    ·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 6 months after the nomination of the position was approved.

18. As noted above, the Company’s nomination for the position of Wholesaler was refused by the Department on 6 July 2018. It applied to the Tribunal for review of that refusal. The Tribunal affirmed the Department’s decision not to approve the nomination on 6 April 2021. Consequently, the position to which Mr Mangukiya’s Subclass 187 visa application relates cannot meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations. As set out in its s.359A letter and as discussed by the Tribunal during the hearing, following the decision of the Full Federal Court of Australia in Singh’s case, this is a ‘once off’ process.  Mr Mangukiya acknowledged the Tribunal’s position in this regard during the hearing. 

19. In the circumstances of this case, as the Company’s nomination for the position of Wholesaler to which Mr Mangukiya ‘s Subclass 187 visa application relates has not been approved, it follows that he does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations. Therefore, cl.187.233 of Schedule 2 to the Regulations is not met.

20. Mr Mangukiya 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 stream, the Temporary Residence Transition stream.  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.

    Katie Malyon

    
    Member

    ATTACHMENT

    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.