Patel (Migration)

[2019] AATA 964

Patel (Migration) [2019] AATA 964 (18 March 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Niral Maneklal Patel

CASE NUMBER:  1800589

DIBP REFERENCE(S):  BCC2017/2203987

MEMBER:Alan McMurran

DATE OF DECISION:  18 March 2019

DATE CORRIGENDUM

SIGNED:22 May 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

1. The Date of Decision ’18 March 2109’ at page number 1 of Decision Record should be replaced with ‘18 March 2019’.

   Alan McMurran
   Member

   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   APPLICANT:  Mr Niral Maneklal Patel

   CASE NUMBER:  1800589

   HOME AFFAIRS REFERENCE(S):           BCC2017/2203987

   MEMBER:Alan McMurran

   DATE:18 March 2109

   PLACE OF DECISION:  Sydney

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

   Statement made on 18 March 2019 at 1:48pm

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

   STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 December 2017 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 8 January 2018.

3. The applicant is a 27 year old Indian citizen who applied for the visa on 22 June 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

4. 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.

5. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Telecommunication Technician with the nominator, Kilari Telecom Pty Ltd.

6. The delegate refused to grant the visa because the applicant did not meet cl.187.233 (3) of Schedule 2 to the Regulations because the applicant was not the subject of a nomination approved by the Minister.

7. The applicant was invited to appear before the Tribunal on 20 February 2019 to give evidence and present arguments. The applicant did not appear. The applicant did not respond to the hearing invitation from the tribunal dated 22 January 2019, which also requested any additional material or information be provided before the hearing date.

8. The Tribunal has elected to proceed to determine the matter on the basis of the information before it. 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 the present case is whether the applicant is the subject of a nomination approved by the Minister.

   Nomination of a position

10. 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.

11. 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

12. For consideration, the Tribunal has available to it electronic records from the Department file and the Tribunal’s case file. The Tribunal notes that no further or other information has been provided with the application to the Tribunal.

13. The application gave a history of employment in Australia from June 2015 to June 2017, firstly with Japji Investments Pty Ltd and then from 18 December 2016 with Illuminati Services Pty Ltd.

14. The Department wrote to the applicant on 9 November 2017, inviting him to comment on the fact the nomination by Kilari Telecom Pty Ltd. had been refused. The letter informed the applicant that as the nomination application had been refused, the visa application could not be approved. The applicant did not respond to this information and the Department notified him of refusal of the visa application by letter dated 21 December 2017.

15. The Tribunal file includes a copy of the decision. The decision notes that the applicant did not provide information concerning the refusal of the nomination by the Department and had not responded to the Department’s letter. The Tribunal in turn wrote to the applicant on 9 January 2018 inviting him to provide information. There was no response. The Tribunal sent a further letter on 6 December 2018, informing the applicant that:

    “It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved. Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a subclass 187 visa must be affirmed.”

16. The applicant was invited to provide information for consideration by the Tribunal, by 20 December 2018. The Tribunal did not receive any response to that request and sent an invitation to the applicant to attend a hearing on 20 February 2019 in a multi-application hearing list. The applicant did not respond to that hearing invitation.

17. The Tribunal has had regard to the fact the applicant has declined to provide any further information for the Tribunal to consider, other than what was contained in the initial application to the Department. The applicant has had at least 3 opportunities to do so, including a request from the Department prior to finalising its decision on the application. The Tribunal is satisfied the applicant has had a reasonable opportunity to consider the circumstances and respond. No explanation was provided for the applicant’s non-appearance at the scheduled hearing which as a result was cancelled. The Tribunal also notes a considerable amount of time has passed since lodgement of the application on 8 January 2018 without any communication from the applicant.

18. A check of the Department’s movement records shows the applicant had arrived in Australia as a tourist on 19 March 2014, obtained a 457 visa while onshore, and granted 16 June 2015 when the applicant was sponsored by another sponsor, Japji Investments Pty Ltd. in the same occupation. Other than that, there is nothing else for the Tribunal to consider in respect of an approved or pending nomination of the applicant, following refusal of the current nominator’s application. As a consequence, the Tribunal is unable to consider this application any further as the criterion in cl.187.233 (3) is not met.

19. 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

20. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Alan McMurran
    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.