Patel (Migration)

[2020] AATA 3340

Patel (Migration) [2020] AATA 3340 (7 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Pinalben Pravinbhai Patel
Mr Nikunjkumar Bharatbhai Patel
Master Nitya Nikunjkumar Patel

CASE NUMBER:  1837400

HOME AFFAIRS REFERENCE(S):          BCC2017/2103467

MEMBER:Andrew McLean Williams

DATE:7 August 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 07 August 2020 at 3:57pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – related nomination of position refused and refusal affirmed on review – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(1), 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 14 June 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 (‘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. The delegate refused to grant the visas because the first-named applicant (‘the primary applicant’) did not meet the requirements of cl.187.233(1) of Schedule 2 to the Regulations, because the nomination lodged by Laxmii Narayan Pty Ltd (being the nomination referred to in paragraph 187.233(1) in the case of the primary applicant) had been refused by a delegate of the Minister on 14 November 2018. That refusal decision was subsequently challenged by Laxmii Narayan Pty Ltd filing an application for review before the Tribunal. However, the decision to refuse the application for approval of a nominated position for the primary applicant was subsequently affirmed by the Tribunal, on 28 February 2020. In the result, it remains the case that the primary applicant does not have a nominated position that has been approved by the Minister, such that the primary applicant cannot meet the mandatory requirements of cl.187.233(1), and the other named applicants as family members of the primary applicant cannot meet the requirements of cl.187.311(a).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the primary applicant satisfies the requirements of cl.187.233(1).

   Nomination of a position

7. 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.

8. 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.

9. On 18 May 2020 the Tribunal wrote to the applicants pursuant to s.359A of the Act, pointing out the matters identified in paragraph 4 of these reasons, and requesting a submission. The applicants did make a submission, in the form of an email back to the Tribunal dated 3 June 2020. The matters raised therein do not overcome the essential issue, which is that the primary applicant does not have a nominated position that has been approved by the Minister.

10. Therefore, cl.187.233 is not met.

11. The primary 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

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

    Andrew McLean Williams
    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.