Patel (Migration)

[2023] AATA 913

Patel (Migration) [2023] AATA 913 (27 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vaibhav Natvarlal Patel
Mrs Dhara Vaibhavkumar Patel

CASE NUMBER:  1935293

HOME AFFAIRS REFERENCE(S):          BCC2017/4860523

MEMBER:Wan Shum

DATE:27 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the first named applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

The Tribunal does not have jurisdiction to review the application made in respect of the second named applicant.

Statement made on 27 March 2023 at 2:40pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Transport Company Manager – no approved nomination – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.233; rr 1.13, 5.19

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 19 December 2017. At the time of application, Class RN contained 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 position of Transport Company Manager. The position was nominated under the Regional Sponsored Migration Scheme by The Trustee for Infotech Solutions Family Trust (the nominator) on 18 December 2017.

5. A delegate of the Minister decided not to approve the nomination and consequently, the delegate in this matter refused to grant the visas finding that the applicant did not meet cl 187.233 of Schedule 2 to the Regulations.

6. Both the nominator and the applicants sought review of those decisions.

7. The Tribunal does not have jurisdiction to review the application made in respect of the second named applicant as she was not in Australia when the visa was refused nor when the application for review was made.

8. For the following reasons, the Tribunal has concluded that this matter should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the nomination has been approved. 

10. This requirement is set out in clause 187.233 which appears 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.

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

    ·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.

12. On the visa application form, the section for ‘nomination details’ was completed with details of a related nomination with Transaction Reference Number EGOGPBW11X, which is the reference number assigned to the nomination made by the nominator on 18 December 2017 for the position of ‘Developer Programmer’. Under the section ENS/RSMS declarations, the applicant responded ‘Yes’ to the sentence “[h]ave declared that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection”.

13. On 30 January 2023, the Tribunal affirmed the application for review made by the nominator.

14. An invitation was sent to the applicants to attend a hearing scheduled for 1 December 2022. The brother of the applicant contacted the Tribunal to advise that the applicants were not in Australia. The hearing was rescheduled until 8 February 2023. An officer of the Tribunal attempted to phone the applicant at the scheduled time but was advised that he could not proceed with the hearing as he had been in an accident and was in hospital. The Tribunal adjourned the hearing to 15 February 2023 but on that day, the officer was informed that the applicants remained in hospital. The Tribunal then wrote to the applicants on 16 February 2023 inviting them to provide comments on the information that there was no approved nomination. The Tribunal also requested information as to when the applicants would be released from hospital. No response has been received.

15. In these circumstances, the Tribunal has decided to proceed to a decision on the information before it. The visa application the subject of this review was made in connection with the position nominated in the application with TRN EGOGPBW11X. That nomination has not been approved. That means there is no approval of the position for which he made the declaration on the visa application form as required by cl 187.233(1)(b).

16. The Tribunal finds on the evidence before it that the nomination of the position to which the visa application relates has not been approved. Therefore, cl 187.233(3) is not met and cl 187.233 is not satisfied.

17. 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

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

19. The Tribunal does not have jurisdiction to review the application made in respect of the second named applicant.

    Wan Shum
    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.