Padmani (Migration)

[2022] AATA 397

Padmani (Migration) [2022] AATA 397 (14 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kapilkumar Keshu Padmani
Ms Khushboo Kapilkumar Padmani

REPRESENTATIVE:  Ms Athina Stephanou (MARN: 0103875)

CASE NUMBER:  1901621

HOME AFFAIRS REFERENCE(S):          BCC2017/1127845

MEMBER:Terrence Baxter

DATE:14 February 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.233(3) of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in the matter of the second named applicant.          

Statement made on 14 February 2022 at 9:19am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Store Manager – nomination approved upon review – secondary applicant not in the migration zone – decision under review remitted 

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338, 347
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

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 23 March 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 (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 Store Manager for The Chilly Spice Pty Ltd (the nominator).

5. The delegate refused to grant the visas on 18 January 2019 because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations which required that he be the subject of an approved nomination. The delegate found that the nomination of the nominator was refused on 20 December 2018 and that, accordingly, the applicant did not satisfy cl 187.233(3) and did not meet cl 187.233 as a whole.

6. The delegate also found that the second named applicant could not be granted a Subclass 187 visa, as she did not meet the secondary visa criterion (cl 187.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

7. The applicants lodged an application for review of the delegate's decision with the Tribunal on 23 January 2019.

8. The applicant appeared before the Tribunal on 8 December 2021 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the nomination application of the nominator.

9. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined that it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also 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 conducted by video conference.

10. The applicants were represented in relation to the review by their registered migration agent, Ms Athina Stephanou, of AIS Immigration Solutions. The representative attended the Tribunal hearing by video conference.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

13. 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.

14. 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 of the Regulations); 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.

15. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Store Manager approved, with the applicant as nominee, on 23 March 2017. The nomination application was refused on 20 December 2018 and the nominator sought review of that decision with the Tribunal on 8 January 2019.

16. On 14 February 2022, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by the nominator.

17. Therefore, cl 187.233(3) is met in respect of the applicant.

18. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

19. In relation to the second named applicant, s 347(3A) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s 338(7A), an application for review may only be made by a non‑citizen who was physically present in the migration zone at the time when the decision was made and is physically present in the migration zone when the application for review is made. Section 338(7A) provides that a decision to refuse to grant a non-citizen a permanent visa is a Part 5 reviewable decision if the non‑citizen made the application for the visa at a time when the non‑citizen was outside the migration zone and the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone. “Migration zone” is defined in s 5(1) of the Act and, generally speaking, means the Australian states and territories.

20. The movement records of the Department show that the second named applicant was not in the migration zone when the application was made (23 March 2017), when the delegate’s decision was made (18 January 2019) and when the review application was lodged (23 January 2019). A Subclass 187 visa is a visa that can be granted when a non-citizen is either inside or outside the migration zone. The second‑named applicant was outside the migration zone when the delegate’s decision was made and when the review application was made.

21. On 25 November 2021, the Tribunal wrote to the applicants at their email address regarding the application made by the second named applicant. The Tribunal advised the applicants that, in order for the second named applicant to have made a valid application, she must have been in Australia at the time of the delegate’s decision and at the time of the review application. The Tribunal also advised the applicants that it appeared that the second named applicant was not in Australia on 18 January 2019 and 23 January 2019 and that her application may not be a valid application. The applicants were invited to make comments on whether she had made a valid application.

22. The applicants did not provide a written response to the Tribunal’s notification of 25 November 2021. At the hearing, the applicant confirmed that the second named applicant was not in Australia on the date of the delegate’s decision, 18 January 2019, or the date of the lodgement of the review application, 23 January 2019. The representative made no submissions in relation to this application.

23. The Tribunal finds that the application for review by the second named applicant is not an application properly made under s 347 of the Act and the Tribunal does not have jurisdiction in the matter of that application.

24. On 28 June 2021, the representative requested that the applicants’ daughter, Miss Priva Kapilkumar Padmani, born on 30 March 2021, be included as an applicant in this application. On 25 November 2021, the Tribunal notified the representative that for Miss Padmani to be added as an applicant, the Tribunal required a Notification Letter and Decision Record from the Department including reference to her. At the hearing, the Tribunal advised the applicant that a child born after the delegate’s decision is made is not taken to be included in the parents’ application. It is the understanding of the Tribunal that an applicant’s child, born after the delegate’s decision, can only be included in a visa application if the refusal of the visa application has been set aside by the Tribunal and the application has been remitted to the Department.

    DECISION

25. The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233(3) of Schedule 2 to the Regulations.

26. The Tribunal does not have jurisdiction in the matter of the second named applicant.

    Terrence Baxter
    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.