Patel (Migration)

[2018] AATA 1537

Patel (Migration) [2018] AATA 1537 (4 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sandipkumar Kantibhai Patel
Mrs Hetalben Sandipkumar Patel
Miss Kashish Patel

CASE NUMBER:  1607381

DIBP REFERENCE(S):  BCC2015/2610711

MEMBER:Antonio Dronjic

DATE:4 April 2018

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 04 April 2018 at 3:30pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not the subject of an approved nomination – Decision affirmed

Practice and Procedure – Applicant did not respond to information – Whether adjournment should be granted – Applicant aware of information for significant period – Adjournment not granted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cls 187.233, 187.311

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 Immigration and Border Protection 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 8 September 2015. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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 a Personal Assistant. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The related nomination application referred to in the visa application had been refused by the department and as a result; the delegate found that the applicant did not meet cl.187.233.

6. The applicants applied to this tribunal for review of the Department’s decision on 19 May 2016 and with their application provided a copy of the primary decision record. The applicants were represented in relation to the review by their registered migration agent.

7. By letter dated 14 March 2018, and in accordance with section 359A of the Act, the tribunal invited the applicants to comment on or respond to information that it considered would be the reasons, or part of the reason, for affirming the decision under review. The particulars of the information were:

   Your visa application was refused by the Department on 17 May 2016 because the appointment, to which the visa application relates, has not been approved by the Department.

   The decision not to approve nomination by Dreamland (Australia) Pty Ltd ATF The Peters Family Trust was made by the Department on 5 April 2016.

   Dreamland (Australia) Pty Ltd ATF The Peters Family Trust applied for review of this decision at this Tribunal on 12 April 2016. On 13 March 2018, the Tribunal affirmed the primary decision related to the nomination application.

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 187 visa. This is because one of the criteria contained within subclass 187, namely clause 187.233(3) requires that the Minister has approved the nomination.

   If the Tribunal were to rely on this information, the Tribunal would accordingly be required to affirm the decision of the delegate on the basis that you do not meet the criteria contained within clause 187.233.

   This information is relevant to the second and the third named review applicants because cl.187.311 which prescribes that the secondary applicants meet the requirement of this subclause if the applicants are members of the family unit (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa and they made a combined application with the primary applicant.

   Accordingly, if the first named review applicant is not a holder of a subclass 187 visa, the secondary applicants will not be able to meet cl.187.311.

8. The invitation was sent to the applicants’ nominated address provided in connection with the review and advised that, if the comments on or response to information was not provided in writing by 28 March 2018, and no extension of time to provide comments on or response to information was requested or granted, the tribunal may make a decision on the review without taking further steps to obtain the comments on or response to information and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the tribunal to give evidence and present arguments.

9. On 22 March 2018, the first named applicant requested that all correspondence be sent to his address.

10. The review applicants have not provided their comments on or response to information within the prescribed period. Nor did they request an extension of time to do so. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are 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. As of the day of this decision, no further correspondence was received either from the applicant or her representative.

11. The tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicants additional time in which to provide further evidence to support their review applications.

12. In doing so, the tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

13. In this case the tribunal wrote to the applicants under subsection 359A of the Act inviting them to provide comments and/or or response to the tribunal letter of 14 March 2018. The tribunal notes that the applicants have had the benefit of representation from a registered migration agent to assist with their review applications. Yet, neither the applicant nor their representative provided comments on or response to information within the prescribed periods set for this purpose.

14. The tribunal has had regard to the fact that the visa application was refused by the Department on 5 April 2016 because the first named applicant did not meet cl.187.233 of Schedule 2 to the Regulations. This clause inter alia requires that the Minister has approved the nomination. The applicant submitted a copy of the primary decision record with the review application. Accordingly, the applicant was aware of the reasons for the visa refusal for more than 23 months.

15. The tribunal note that, if the applicants are not granted visa, they may be required to depart Australia. There is nothing to prevent the applicants from re-applying for this visa once the department approves nomination by their prospective employer.

16. In the circumstances, the tribunal considers the applicants have had sufficient time in which to address the central issue arising in the applications for review. Accordingly, the tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. 

17. The tribunal has decided to proceed to decision without taking further steps to obtain the comments on or response to information contained in the tribunal’s letter of 14 March 2018.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

18. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

19. 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.

20. Based on the evidence before it, the tribunal finds that the appointment mentioned in subclause 187.233 lodged by Dreamland (Australia) Pty Ltd ATF The Peters Family Trust on behalf of the first named applicant, has not been approved at the time of the tribunal’s decision. As a result, the tribunal finds that the first named applicant does not meet the requirements of clause 187.233 at the time of its decision.

21. 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.

22. The tribunal must also affirm the decision not to grant the second and the third named applicants a subclass 187 visa as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 187 visa, and there is no evidence that they meet the primary visa criteria for this subclass in their own right.

    DECISION

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

    Antonio Dronjic
    Member