Patel (Migration)

[2020] AATA 3089

Patel (Migration) [2020] AATA 3089 (22 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Dimple Mayurkumar Patel
Mr Mayurkumar Mahendrabhai Patel
Master Haroon Patel

CASE NUMBER:  1803065

HOME AFFAIRS REFERENCE(S):          BCC2017/954360

MEMBER:C. Packer

DATE:22 July 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 22 July 2020 at 4:42pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related nomination application refused – refusal affirmed on review – no response to tribunal’s s 359 letter – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359, 359C, 360(3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

CASE

Hasran v MIAC [2010] FCAFC 40

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 10 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 (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 Retail Manager (ANZSCO 142111). The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations.

5. On 6 July 2020 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to comment on or respond to information in writing. The Tribunal’s letter indicated the particulars of the information are:

   ·On 31 August 2016 Mondo Fresco made an application listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa), and the position was said to be Retail Manager (ANZSCO 142111) and nominated Ms Dimple Patel. However, on 12 December 2017 a delegate of the Minister for Immigration and Border Protection rejected the application.

   ·Subsequently, on 2 July 2020 the Tribunal affirmed the decision under review to refuse the nomination by Mondo Fresco that concerned you.

   ·This information is relevant to the review because without an approved nomination, you will not meet an essential criterion for the grant of the visa. If we rely on this information in making our decision, the decision under review must be affirmed.

6. The invitation was sent to the last address provided in connection with the review and advised that if the comments or response was not provided in writing by 20 July 2020 the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s views and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The review applicant has not provided their views and information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain their views or the information.

8. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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, 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.

10. However, the application made by Mondo Fresco that concerned the applicant was rejected by the delegate on 12 December 2017. Subsequently, on 2 July 2020 the Tribunal affirmed the decision under review to refuse the nomination by Mondo Fresco.

11. The applicant was invited to comment or respond to this information but they did not do so within the prescribed period and no extension has been granted.

12. Based on the information before it, the Tribunal finds the applicant does not meet the requirement of cl.187.233(3) as there is no approved nomination.

13. 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. As the first named applicant does not meet all requirements, the secondary applicants also do not satisfy all requirements for the visas.

    DECISION

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

    C. Packer
    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.