Patel (Migration)

[2020] AATA 848

Patel (Migration) [2020] AATA 848 (24 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jagatkumar Jashubhai Patel
Mrs Ankitaben Jagatkumar Patel
Mr Pranshu Jagatkumar Patel

CASE NUMBER:  1804415

HOME AFFAIRS REFERENCE(S):          BCC2016/4348269

MEMBER:C. Packer

DATE:24 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 24 January 2020 at 4:24pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Retail Manager – no current information that shows the position is still available to applicant –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, 187.233

CASES
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 29 May 2016. 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.

5. On 20 February 2018 the delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because a nomination by Racrob Pty Ltd atf R&C Robson Family Trust had been refused.

6. On 9 January 2020 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information that addressed the requirements in clause 187.233. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 23 January 2020 the Tribunal may make a decision on the review without taking further steps to obtain the information 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 responded, and has not provided the 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 the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets the requirements for grant of a Regional Employer Nomination (Permanent) (Class RN) visa (187 visa). Clause 187.233 is extracted in the attachment to this decision. For the application to be approved, all the requirements must be met.

   Position is still available

10. Clause 187.233(5) requires that the position is still available to the applicant.

11. The Tribunal’s letter of 9 January 2020 invited the applicant to provide information that addressed the requirements in cl.187.233 including information that shows the position is still available to him. However, the applicant has not provided the information within the prescribed period, and the business information before the Tribunal is not current. There is no current information before the Tribunal that shows the position is still available to him.

12. Accordingly, the Tribunal is not satisfied that the position is still available to the applicant. The Tribunal finds cl.187.233(5) is not satisfied. It follows that the applicant does not meet all the requirements for the visa, and the secondary applicants also do not meet all requirements for the visa. Therefore, the Tribunal must affirm the decision under review.

    DECISION

13. 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.