Patel (Migration)

[2023] AATA 3588

Patel (Migration) [2023] AATA 3588 (28 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gayatriben Sankabhai Patel
[the second applicant]
Mr Nareshkumar Kantilal Patel
[the fourth applicant]

REPRESENTATIVE:  Mr Nirav Sureshkumar Patel (MARN: 1800342)

CASE NUMBER:  1914336

HOME AFFAIRS REFERENCE(S):          BCC2018/768735

MEMBER:Namoi Dougall

DATE:28 September 2023

PLACE OF DECISION:  Sydney

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

In relation to the second and fourth named applicants, the Tribunal does not have jurisdiction in this matter

Statement made on 28 September 2023 at 11:59am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – retail manager – subject of approved position nomination – refusal of related nomination application affirmed in separate review – possibility of applying for visa on basis of skills assessment – members of family unit – second applicant older child now citizen – fourth applicant younger child born after delegate’s decision not taken to be included in parents’ visa application, and no separate application made – no jurisdiction for second and fourth applicants – request for referral for ministerial consideration – length of residence and older child’s citizenship – referred for consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347(2)(a), 351, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 187.223, 187.311

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 (Cth) (the Act).

2. The applicants applied for the visas on 15 February 2018. 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 (Cth) (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).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the nomination application lodged by The Trustees for the Narayan Krupa Family Trust (the nominating business) was refused by a delegate for the Minister on 24 April 2019. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.

6. The applicant and second named appeared before the Tribunal on 19 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from

7. The applicants were represented in relation to the review.

8. The second named applicant was granted Australian citizenship [in] January 2023. As he is no longer a noncitizen, the Tribunal no longer has jurisdiction in relation to [the second applicant]; s.347(2)(a).

9. The fourth named applicant was not included in the applicant’s Subclass 187 visa application or the application for review of the delegate’s decision made on 24 April 2019 to refuse the grant the Subclass 187 visas as he was not born until [Date]. Children of applicants who are born after the delegate’s decision is made, including those born during the course of a review, are not taken to be included in the parent’s visa application, and have to lodge a sperate visa application. A separate visa application lodged by such a child that is then the subject of review would be dealt with at the same time as the review of the child’s parents. Despite the Tribunal notifying the applicants of this by email dated 2 July 2021, no separate visa application has been lodged by the fourth named applicant and the Tribunal is satisfied that there is no reviewable decision in relation to the fourth named applicant and the Tribunal does not have jurisdiction in relation to [the fourth applicant].

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the position to which the application relates is the subject of an approved nomination.

Nomination of a position

1. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

2. 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 reg 1.13A and reg 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.

3. On 5 September 2023, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting the applicant to comment on at the hearing or respond to adverse information. The adverse information was that the applicant had applied for the Subclass 187 visa on the basis of a nomination of a position made by the nominating buisness and that on 24 April 2019, the Department had refused that nomination. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination and the Tribunal affirmed the delegate’s decision not to grant the Subclass 187 visa on 1 July 2023.

4. The Tribunal’s letter also stated that if the Tribunal made the above findings, it would also find that that the nomination of the position lodged by your nominating employer and which the applicant relied on when lodging their visa application, has not been approved. If the Tribunal makes this finding, then it will also find that the applicant does not meet all of the requirements for the grant of a Subclass 187 visa, particularly cl.187.233 and the delegates decision not to grant you a Subclass 187 visa will be affirmed.

5. At hearing the Tribunal explained the above criteria, particularly the criterion requiring the position to be the subject of an approved nomination was explained to the applicant comprehensively. The applicant confirmed that he understood these requirements. Further, the Tribunal explained that the nomination must be the one that was the subject of the declaration made as part of the current visa application. The applicant confirmed that she understood this requirement. The documentation indicated that the applicant was working for his nominating business during this period.

6. At the hearing the applicant stated that she understood the requirements for cl.197.233 and the adverse information. The applicant has been living in Australia for 14 years since June 2009 and it was surprising that they were rejected. After living 3 years in a regional area, they have moved to Adelaide as the applicant is pregnant. Further her eldest child is an Australian citizen, and her second child was also born in Australia. The applicant is studying horticulture and she has submitted a skills assessment last week so she can apply for a visa based on that skills assessment.

7. On 24 April 2019, the Department the Department refused the nomination of position which the applicant’s Subclass 187 visa application relates. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination and the Tribunal affirmed the delegate’s decision on 1 July 2023. As the relevant nomination has been refused, the Tribunal must find that the position to which the application relates is not the subject of an approved nomination.

8. Therefore, cl 187.233 is not met.

9. 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.

10. As the primary applicant is found not to have met the prescribed criteria for a subclass 187 visa, the third named applicant as a member of the applicant’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the third named applicant, does not satisfy cl.187.311.

    MINSITERIAL INTERVENTION

1. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant and her spouse have lived and worked in Australia for 14 years. Both of the applicant’s children were born at Adelaide hospital. The applicant’s eldest child [the second applicant] was born on [Date] and [in] January 2023 became an Australian citizen.

2. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

DECISION

1. The Tribunal affirms the decision not to grant the first and third named applicants Regional Employer Nomination (Permanent) (Class RN) visas.

   In relation to the second and fourth named applicants, the Tribunal does not have jurisdiction in this matter.

Namoi Dougall
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

(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.