Panjabi (Migration) - [2020] AATA 2292

Panjabi (Migration) [2020] AATA 2292 (28 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Priti Alpesh Panjabi
Mr Alpesh Sureshchandra Panjabi
Miss Herlin Alpesh Panjabi
CASE NUMBER:  1825731
HOME AFFAIRS REFERENCE(S):          BCC2016/2999730
MEMBER:Jade Murphy
DATE:28 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 28 May 2020 at 12:30pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related position nomination refused – application for review of refusal withdrawn – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(1)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicants applied for the visas on 9 September 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Hairdresser.
The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the delegate found that the nomination referred to in cl.187.233(1) was refused by a delegate for the Minister for Home Affairs on 11 July 2018. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.
The applicant appeared before the Tribunal on 27 May 2020 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the position to which the application relates is the subject of an approved nomination.
Nomination of a position
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.
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.
The Tribunal notes the following:
·On 11 July 2018, the nomination lodged by Dulhan Exclusives Pty Ltd, being the nomination referred to in paragraph 187.233(1), was refused by a delegate for the Minister for the Department of Home Affairs.
·On 1 August 2018, Dulhan Exclusives Pty Ltd, lodged an application for Tribunal review of the refusal decision.
·On 3 February 2020, Dulhan Exclusives Pty Ltd withdrew their application for Tribunal review of the department’s decision.
At hearing the Tribunal outlined the above and told the applicant it was concerned that the position to which the application relates is not the subject of an approved nomination that has not been refused. The Tribunal asked the applicant whether she wished to respond. The applicant told the Tribunal about the breakdown in the relationship between her and her nominating employer, as well as her migration agent. She also expressed confusion regarding the employer nomination refusal. The Tribunal noted the applicant’s submissions however explained to the applicant that it has no discretion to dispense with the mandatory nomination requirement as set out in cl.187.233(1).
As the relevant nomination has been refused, the Tribunal must find that the position to which the application relates is not the subject of an approved nomination.
Therefore, cl.187.233 is not met.
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
The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
Jade Murphy
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.

Details

AGLC: Panjabi (Migration) [2020] AATA 2292
Case: [2020] AATA 2292
Decision Date: 28 May 2020

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the direct entry stream. The applicant sought review of a decision to refuse this visa. The Tribunal was required to determine whether the position nominated by the employer, Dulhan Exclusives Pty Ltd, met the requirements of clause 187.233 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominated position was the subject of an approved nomination that had not been refused or withdrawn. Clause 187.233 mandates that the position must be nominated, the nomination must have been approved and not subsequently withdrawn, and other conditions relating to adverse information and availability of the position must be met. The Tribunal also considered whether the applicant had satisfied the criteria for the direct entry stream of the Subclass 187 visa.

The Tribunal noted that the nomination lodged by Dulhan Exclusives Pty Ltd was refused on 11 July 2018. Although an application for review of this refusal was lodged by the company, it was subsequently withdrawn on 3 February 2020. The Tribunal explained to the applicant that it had no discretion to waive the mandatory nomination requirement. As the nomination had been refused, the Tribunal concluded that clause 187.233 was not met. Since the applicant had only sought to satisfy the criteria for the direct entry stream and these requirements were not met, the Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the position to which the application relates is the subject of an approved nomination.Nomination of a position 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. 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. The Tribunal notes the following:·On 11 July 2018, the nomination lodged by Dulhan Exclusives Pty Ltd, being the nomination referred to in paragraph 187.233(1), was refused by a delegate for the Minister for the Department of Home Affairs.·On 1 August 2018, Dulhan Exclusives Pty Ltd, lodged an application for Tribunal review of the refusal decision.·On 3 February 2020, Dulhan Exclusives Pty Ltd withdrew their application for Tribunal review of the department’s decision. At hearing the Tribunal outlined the above and told the applicant it was concerned that the position to which the application relates is not the subject of an approved nomination that has not been refused. The Tribunal asked the applicant whether she wished to respond. The applicant told the Tribunal about the breakdown in the relationship between her and her nominating employer, as well as her migration agent. She also expressed confusion regarding the employer nomination refusal. The Tribunal noted the applicant’s submissions however explained to the applicant that it has no discretion to dispense with the mandatory nomination requirement as set out in cl.187.233(1). As the relevant nomination has been refused, the Tribunal must find that the position to which the application relates is not the subject of an approved nomination. Therefore, cl.187.233 is not met. 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

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.Jade MurphyMemberATTACHMENT A187.233(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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.