Patel (Migration)

[2023] AATA 436

Patel (Migration) [2023] AATA 436 (7 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ankitaben Chiragkumar Patel
Mr Chiragkumar Kantibhai Patel
Ms Vishva Chiragkumar Patel

REPRESENTATIVE:  Mr Sourabh Aggarwal (MARN: 1462159)

CASE NUMBER:  1920549

HOME AFFAIRS REFERENCE(S):          BCC2017/1957665

MEMBER:Terrence Baxter

DATE:7 March 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration in respect of the first named and second named applicants, with the direction that the first named applicant meets the following criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.233(3) of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in the matter of the third named applicant.

Statement made on 07 March 2023 at 12:52pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – hairdresser – subject of approved position nomination – related nomination application refused – joint hearing of nomination and visa reviews – nomination refusal set aside – members of family unit – third applicant outside migration zone when review application made, with no jurisdiction to review – child born after date of delegate’s decision – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 338(2), 347(3)
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

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 2 June 2017. 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 Hairdresser for Shree Investments Pty Ltd (the nominator).

5. The delegate refused to grant the visas on 16 July 2019 because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 17 June 2019 and that accordingly the applicant did not satisfy cl 187.233(3) and did not meet cl 187.233 as a whole as required.

6. The delegate also found that the second named and third named applicants could not be granted Subclass 187 visas, as they did not meet the secondary visa criterion (cl 187.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 26 July 2019.

8. The first named applicant appeared before the Tribunal by telephone on 9 November 2022 to give evidence and present arguments. The second named applicant also appeared before the Tribunal on that day by video conference but did not give evidence. The first named applicant appeared again before the Tribunal on 1 March 2023 by video conference to give evidence and present arguments. The second named applicant again appeared before the Tribunal on that day by video conference but did not give evidence. The first hearing was a joint hearing with the application for review of a decision to refuse the relevant nomination application. The second hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

9. The Tribunal exercised its discretion to hold the hearings by telephone and video conference. The Tribunal determined it was reasonable to hold the hearings by telephone and video conference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearings were not to be conducted by telephone and video conference.

10. The applicants were represented in relation to the review from 7 November 2022 by their registered migration agent Mr Sourabh Aggarwal of Education Embassy. The representative attended the Tribunal hearings by video conference.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in respect of the first named and second named applicants. Also, for the following reasons, the Tribunal has found that it has no jurisdiction to review the decision in respect of the third named applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether there is an approved nomination in respect of the applicant

    Nomination of a position

13. 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.

14. 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.

15. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Hairdresser approved, with the applicant as nominee, on 2 June 2017. The nomination application was refused on 17 June 2019 and the nominator sought review of that decision with the Tribunal on 2 July 2019.

16. On 15 February 2023, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by the nominator.

17. Therefore, cl 187.233(3) is met in respect of the applicant.

18. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

19. The second named applicant has applied on the basis that he is a member of the family unit of the applicant. His application will also be determined on remittal to the Department for reconsideration in light of the Tribunal’s findings in relation to the first named applicant.

20. In relation to the third named applicant, s 347(3) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s 338(2), an application for review may only be made by a non-citizen who was physically present in the migration zone at the time when the application for review is made. Section 338(2) provides that a decision to refuse to grant a non‑citizen a permanent visa is a Part 5 reviewable decision if the non-citizen made the application for the visa at a time when the non-citizen was in the migration zone and the visa is a visa that could be granted while the non-citizen is in the migration zone. “Migration zone” is defined in s 5(1) of the Act and, generally speaking, means the Australian States and Territories.

21. The movement records of the Department show that the third named applicant was in the migration zone when the visa application was made (2 June 2017).  A Subclass 187 visa is a visa that could be granted when a non-citizen is either inside or outside the migration zone. The movement records of the Department show that the third named applicant was outside the migration zone when the application for review was lodged (26 July 2019).

22. On 18 October 2022, the Tribunal wrote to the applicants at their email address in the following terms:

    I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Regional Employer Nomination (Permanent) visas.

    In order to have made a valid application, Ms Vishva Chiragkumar Patel must have been in Australia at the time the applications were lodged with us on 26 July 2019. It appears that Ms Vishva Chiragkumar Patel was not in Australia on that date, and I am therefore of the view that her applications is not valid a (sic) application. However, this is a matter which must be determined by a Member.

    If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 9 November 2022 or alternatively, you may do so orally at the hearing on 9 November 2022. Any comments you make will be referred to the Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

23. The applicants did not reply to that correspondence. At the second hearing, the first named applicant was asked whether the third named applicant was onshore in Australia at the time of lodgement of the review application on 26 July 2019. She said that the third named applicant was not onshore at that time. The Tribunal explained to the first named and second named applicants that in these circumstances the Tribunal might not have jurisdiction in respect of the application by the third named applicant. The representative made no submissions on the matter of jurisdiction.

24. The Tribunal finds that the application for review by the third named applicant is not an application properly made under s 347 and the Tribunal does not have jurisdiction in the matter of that application.

25. On 9 September 2021, a former representative of the applicants contacted the Tribunal requesting that a child of the first named and second named applicants, born after the date of the delegate’s decision, be added as an applicant in this application. The applicants were advised that, as that child was born after the date of the delegate’s decision, the child could not be added as an applicant unless the Department issued a Decision Record in respect of that child. The Tribunal confirmed this advice to the first named and second named applicants at the second hearing.

    DECISION

26. The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration in respect of the first named and second named applicants, with the direction that the first named applicant meets the following criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233(3) of Schedule 2 to the Regulations.

27. The Tribunal does not have jurisdiction in the matter of the third named applicant.

    Terrence Baxter
    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.