Patel (Migration)

[2020] AATA 748

Patel (Migration) [2020] AATA 748 (23 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ritaben Jainikkumar Patel
Mr Jainik Kirtikumar Patel
Ms Tanvi Jainik Patel

CASE NUMBER:  1804853

HOME AFFAIRS REFERENCE(S):          BCC2017/37396

MEMBER:Stavros Georgiadis

DATE:23 March 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 23 March 2020 at 3:58pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) – 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

CASES
VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280

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 4 January 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 (General) ANZSCO 142111.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations as there was no approved nomination in respect of the position: cl.187.233(3).

6. The applicant appeared before the Tribunal on 23 March 2020 by teleconference to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sanjoy Kumar Ghosh, sole Director of the nominating employer, KBS (Morley) Pty Ltd in the related AAT case file 1731818. The related matters were heard together in a combined hearing.

7. The Tribunal was assisted by an interpreter of the English and Guajarati languages.

8. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicants satisfy the primary and secondary criteria respectively, for the grant of the Subclass 187 visas.

    Nomination of a position

11. 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.

12. 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 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.

13. The Tribunal notes that the required declaration has been made in relation to the position nominated by the employer sponsor, being that of Retail Manager (General) ANZSCO 142111, to satisfy cl.187.233(1).

14. The Tribunal is satisfied, on the documentary and oral evidence before it, that the person who would employ the applicant is the nominator in the application for approval, KBS (Morley) Pty Ltd. Thus the applicant meets cl.187.233(2).

15. On 23 March 2020 the Tribunal made a decision to refuse the nomination application for the occupation lodged by the nominating employer in a statement of decision and reasons of that date in respect of the related AAT case file 1731818.

16. In accordance with the procedure under s.359AA of the Act, the Tribunal put to the applicant at the hearing that it wished to discuss information that, subject to her response, would be the reason or part of the reason, for affirming the decision to refuse the applicant the 187 visa. The Tribunal explained that the applicant would be asked to respond to this information and would be entitled to seek additional time to comment on, or to respond to, the information.

17. The Tribunal put to the applicant that in circumstances where the Tribunal refused to approve the nomination of the position to which the application relates, the applicant would not be able to meet essential criteria to satisfy cl.187.233 of the Regulations or the secondary criteria for the remaining (secondary) applicants. The Tribunal put to the applicant that this information is relevant to the review because without evidence of the approval of the nomination for the position, she could not satisfy the provisions of cl.187.233(3) of the Regulations for the grant of the Class RN visas sought.

18. The applicant responded forthwith in relation to the information. The applicant confirmed to the Tribunal that she understands and accepts that in circumstances where there is no approved nomination, it would not be open for the application for the Subclass 187 visas to be successful as an approved nomination for the position is one of the essential criteria: (cl.187.233(3)).

19. The Tribunal has not returned the matter for any further evidence or submissions since the hearing of 23 March 2020 as, in these circumstances and in view of the authority in the case of VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280 (paragraphs 51-58), it would be ‘futile’ as ‘no useful result could ensue’ because the visas cannot be granted in the absence of an approved nomination. The Tribunal is satisfied that there is no practical injustice in not returning the matter to the Tribunal following its decision refusing the nomination.

20. Having considered the available evidence before it, the Tribunal is satisfied that the position of Retail Manager (General) ANZSCO 142111 is the subject of the relevant r.5.19 nomination application that seeks to meet the requirements of subparagraph 5.19(4)(h)(ii) relating to that position. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.233(3) for the Direct Entry stream. The Tribunal finds that the nomination of the position to which the application relates is not approved.  

21. Therefore, cl.187.233 is not met.

22. 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 in respect of all applicants, including the visa applicant’s spouse and daughter, as claimed members of the same family unit.

23. Accordingly, the remaining visa applicants included in the application are not members of the family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and therefore, do not satisfy cl.187.311.

    DECISION

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

    Stavros Georgiadis
    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.