Miglani (Migration)

[2019] AATA 918

Miglani (Migration) [2019] AATA 918 (21 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pankaj Miglani

CASE NUMBER:  1620888

HOME AFFAIRS REFERENCE(S):       BCC2015/2888197

MEMBER:Ian Berry

DATE:21 March 2019

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 21 March 2019 at 11:18am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40

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 Immigration and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (Act).

2. The applicant applied for the visa on 3 October 2015. 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 (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, Mr Miglani is seeking the visa in Direct Entry stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visa because Mr Miglani did not meet cl.187. 233 of Schedule 2 to the Regulations because his nominator’s application was refused by the Department on 24 October 2016.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether Mr Miglani has an approved nomination which has not been withdrawn.

   Nomination of a position

8. 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.

9. 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.

10. Mr Miglani’s nominator Joshi Qld Pty Ltd (Joshi) applied to review the Department’s decision to refuse its nomination application made on 24 October 2016.

11. Joshi’s application to review the Department’s decision was decided by the Tribunal on 4 March 2019. The Tribunal held it did not have jurisdiction to review the Department’s decision. That decision stated that the Australian Securities & Investments Commission (ASIC) recorded that Joshi was deregistered on 5 February 2018 and there not being any evidence that Joshi had been reinstated.

12. On 5 March 2019, the Tribunal wrote to Mr Miglani pursuant to s.359A of the Act, inviting Mr Miglani to provide information or make comment, in writing about the Tribunal finding, on 4 March 2019, that it had no jurisdiction in relation to an application for review made by Joshi Qld Pty Ltd. As the nomination application by Joshi had been refused, it would be the reason or part of the reason as to why the Tribunal would refuse your visa application, because Mr Miglani would not have an approved nomination where he is identified as the nominee.

13. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 19 March 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and Mr Miglani would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

14. Mr Miglani has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) Mr Miglani is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

15. Therefore, cl.187.233 is not met.

16. Mr Miglani 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

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

    Ian Berry
    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.