Modi (Migration)

[2020] AATA 3414

Modi (Migration) [2020] AATA 3414 (12 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ajaykumar Jasvantlal Modi
Manishaben Ajaykumar Modi
Kiaan Ajaykumar Modi

CASE NUMBER:  1928049

HOME AFFAIRS REFERENCE:               BCC2018/930101

MEMBER:Lilly Mojsin

DATE:12 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 13 August 2020 at 11.00 am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related position nomination refused – no appearance at hearing – no evidence of approved nomination – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360, 362B

Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311(a)

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 27 February 2018. 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 review, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Customer Service Manager [ANZSCO 1928049].

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 made by Victory International Students Support Services Pty Ltd [ABN 83135689351] was refused.

6. The hearing was held during the COVID-19 pandemic.

7. The Tribunal had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

8. The applicant was invited pursuant to s.360 of the Migration Act 1958 to appear before the Tribunal on 25 June 2020 at 11.00 am by telephone. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The applicant was advised that this date will only change if the Tribunal is satisfied that the applicant has a very good reason for being granted an adjournment. The applicant was advised that if the Tribunal did not advise him that an adjournment has been granted, he must assume that the hearing will go ahead.

9. The applicant sent an email to the Tribunal on 24 June 2020 at 8.01pm enclosing a copy of a medical certificate. The medical certificate by Dr B Mital, dated 24 June 2020 stated that the applicant cannot attend work from 25 June 2020 to 26 June 2020 due to viral illness.

10. The applicant was again invited pursuant to s.360 of the Migration Act 1958 to appear before the Tribunal on 12 August 2020 at 9.30 am by telephone. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The applicant was advised that this date will only change if the Tribunal is satisfied that the applicant has a very good reason for being granted an adjournment. The applicant was advised that if the Tribunal did not advise him that an adjournment has been granted, he must assume that the hearing will go ahead.

11. The applicant did not respond to the hearing notification. The Tribunal rang the applicant on 12 August 2020 at 9.20 am, 9.30am and 10.00am. The applicant’s telephone reverted to voice mail. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

12. In addition, the Tribunal finds that the applicant is aware of the issues before the Tribunal, as the issues were set out in the delegate's decision provided by the applicant to the Tribunal at the time of lodging his application and the applicant has failed to take advantage of the opportunity to attend the hearing and present evidence and arguments in support of the application for review, or provide any other supporting evidence.

13. In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. Clause 187.233 as applicable in this review 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.

15. 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.

16. The issue before the Tribunal is whether the nomination made by Victory International Students Support Services Pty Ltd for the nominated position of Customer Service Manager had been approved. The delegate refused the visa as the delegate found the nomination made by Victory International Students Support Services Pty Ltd was refused.

17. The applicant did not attend the Tribunal hearing. The applicant has not contacted the Tribunal to explain his reasons for not attending the Tribunal hearing.

18. The Tribunal has no evidence before it to suggest that there is an approved nomination made by Victory International Students Support Services Pty Ltd for the nominated position of Customer Service Manager.

19. Therefore the Tribunal finds that cl.187.233 is not met.

20. In regard to the 2^nd and 3^rd named applicants, as they not members of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, cl.187.311(a) is not satisfied.

21. 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.

22. 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

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

    Lilly Mojsin
    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.