Nagpal (Migration)

[2019] AATA 3127

Nagpal (Migration) [2019] AATA 3127 (20 May 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Himanshu Nagpal Mrs Divya Nagpal Master Arindam Nagpal Mrs Sushma Nagpal

CASE NUMBER:  1834993

HOME AFFAIRS REFERENCE(S):          BCC2017/1684353

MEMBER:  Michael Cooke

DATE:  20 May 2019

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 20 May 2019 at 3:26pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Restaurant Manager – 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

1. The applicants applied for the visas on 11 May 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

1. 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.

1. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream.

1. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3)of Schedule 2 to the Regulations because the appointment to which the visa application relates had not been approved.

1. The applicants appeared before the Tribunal on 9 May 2019 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is the refusal by the Department of the nomination.

The Hearing

1. The Tribunal outlined to the applicant this predicament. It noted that he had responded to the Invitation to Comment letter sent to him and he had responded that his employer had sought review of the refusal of the nomination at the Tribunal. The Tribunal clarified to him that the nominator did not have a current review application before the Tribunal. The problem was that if there was no application for review by the nominator he could not win his review and the decision would have to be affirmed.

1. The applicant than outlined the various travails that had befallen him during his migration history including difficulties with Departmental paperwork and his employers and the expense of visa applications. He explained his situation more fully in a comprehensive submission he forwarded to the Tribunal:

Me and my son as dependent on my then wife's study visa arrived in Australia in April 2013. We had to leave my dependent mother back in India in my uncle's care as there was no other option. I was fortunate enough to get a job with Coles Express in the month of July 2013. Alongside l was looking for a better job option which requires my expertise, I was offered Restaurant Manager position by a business

Sandra Kay Foods & Catering in Bathurst. It was a dream come true as they agreed to sponsor me for Permanent Residency via Visa 187. I happily accepted the offer, and filed my visa in March 2014 spending around $17000. In July 2014, I was informed by the department that the nomination has been refused as the business has been banned to sponsor anyone for a certain period of time. It was a big loss but I kept working there and the business was sold in Feb 2015. The new owners retained me as their employee and also agree to sponsor when I requested.

Filed 457 Visa in July 2015 spending another $10000, which I am not aware what actually happened but Migration agent informed due to some mistake by the immigration officer I will have to withdraw the file and do the whole process again. I filed the visa again in September 2015 spending another $10000 but this time opted a different Migration agent and the visa was granted in November 2015. It was really stressful borrowing all that money. 457 Visa was issued to me until May 2017 (18 months).

In the month of April 2017, government decided to demolish Visa 457. I needed 6 more months to spend on 457 as per requirement of 24 months before filing for Permanent Residency. Once again, no option left, filed 187 again in May 2017.

Worst was yet to come. In the month of October 2018, 187 nomination was refused stating the company is not financially strong enough to assure employment for next 2 years. The same company which was paying me since 2015.

It is depressing. I lost family, money and everything I had. Sold my house and another property to pay off the loans taken for Visas. During all this time, the stress and loans spoiled my family life. As a result, my wife separated and has now filed a divorce. My son, who is now 10 years old, is in mutual custody.

I was told that I can file a review appeal into Tribunal which I did, but the business did not appeal for the nomination on time.

I am suffering even though I did everything lawfully. It is a risk going back to India and will have to stay away from my son if I do go back.

Nomination of a position

1. 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.

1. 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.

Findings and reasons relating to whether the applicant meets all requirements

1. The applicant, as can be seen from both Tribunal advice and the applicant’s own submission, is not the subject of an approved nomination. This is a requirement for the visa.

1. Therefore, cl.187.233(3) is not met.

1. 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

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

Michael Cooke Senior 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.