Patel (Migration)

[2022] AATA 3859

Patel (Migration) [2022] AATA 3859 (26 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Darshanaben Vitthalbhai Patel
Mr Urveshbhai Ghanshyambhai Patel

REPRESENTATIVE:  Mr Jaiminkumar Darbar (MARN: 1575637)

CASE NUMBER:  1913052

HOME AFFAIRS REFERENCE(S):          BCC2017/2333069

MEMBER:Penelope Hunter

DATE:26 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 26 October 2022 at 12:12pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Retail Manager (General) – no approved nomination – business ceased operations – current employer prepared to sponsor the applicant – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

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 30 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  the primary visa applicant. She is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (General) (ANZSCO 142111).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the related nomination of the applicant’s nominating employer, KVR Enterprises ATF for the KVR Family Trust, had not been approved. A copy of the delegate’s decision record has been submitted to the Tribunal.

6. On 10 October 2022, the Tribunal wrote to the applicants pursuant to the provisions of s 359A of the Act inviting them to provide comment on information that it considered would be a reason or a part of the reason for affirming the decision under review.  The relevant information was that on 14 March 2022, in a separate review application, the Tribunal had affirmed the decision to refuse the nomination application lodged by KVR Enterprises ATF the KVR Family Trust. The Tribunal explained the relevance of the information and informed the visa applicants if it relied on the information that it may find that the relevant nomination had not been approved and that the applicant may not be able to meet the requirement of cl 187.233(3) of the Regulations. The applicants were invited to provide their comments or response on the hearing date, 24 October 2022.  

7. The applicant only, appeared before the Tribunal by telephone on 24 October 2022 to give evidence and present arguments. The Tribunal determined it was reasonable in the circumstances to hold a hearing by telephone, given the issue under review and the location of the applicant in regional Queensland and the presiding member in Sydney. 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 hearing was not to be conducted by telephone.  The applicants were represented in relation to the review, although their representative did not appear at the hearing.

8. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant satisfies cl 187.233 of Schedule 2 to the Regulations.

   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. 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 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.

12. On 24 October 2024, the applicant provided to the Tribunal a letter of submission and the following additional documents:

    i.Payslips for the applicant while working at KVR Enterprises ATF the KVR Family Trust, in the position of Retail Manager, for the period 6 June 2016 to 12 June 2016, 7 November 2016 to 13 November 2016, 27 November 2017 to 3 December 2017, 18 June 2018 to 24 June 2018, 24 December 2018 to 30 December 2018, 12 August 2018 to 18 August 2018,

    ii.Payslips for the applicant while working at Daawat Indian Restaurant, in the position of chef, for the period 14 June 2021 to 21 June 2021 and 3 October 2022 to 9 October 2022.

    iii.TRA Job Ready Assessment Outcome for the applicant dated 28 October 2021, for the occupation of Cook.

    iv.Letter of confirmation by Naati that the applicant has passed the Community Language Test in Hindi, dated 29 February 2020.

    v.PTE Academic Test Taker score report for the applicant, test taken 10 June 2022.

13. The applicant provided evidence to the Tribunal at hearing consistent with her written submissions. She had obtained several qualifications in Australia including a Certificate III in Business, a Bachelor of Business Administer and a Master of Accounting. In June 2016 she obtained employment with her nominator, and she was successful in this role. Although her nominator offered to sponsor through the RSMS migration program they did not pursue diligently the necessary approvals and the applicant found that they were reluctant to support her in the process of satisfying the requirements for her to be approved for the visa. She believed this contributed to the nomination being refused by the Department in the first instance on 16 January 2019. Then another supermarket was built in the area and the business suffered a downturn. Consequently, the nominator decided to close the business in August 2019.

14. The applicant confirmed that she understood that the visa she was seeking was subject to the approval of a nomination by her nominating employer. The Tribunal discussed with the applicant the information contained in the invitation to comment sent to her on 10 October 2022. This was that upon review the decision to refuse the relevant nomination lodged by KVR Enterprises ATF the KVR Family Trust had been refused by the Tribunal on 14 March 2022. The applicant did not have any evidence to dispute this.

15. Further on the evidence of the applicant the retail business in which the applicant was employed by the nominator has closed as of August 2019. The applicant has also for several years been engaged in different employment.

16. Although the applicant was aware that she would not satisfy the requirements for the visa under review she told the Tribunal that she had been working towards pursuing other opportunities. She completed a Certificate IV in Commercial Cookery and for the last two years she has been working as a chef for a restaurant in Maleny Queensland, Daawat Indian Restaurant. The applicant claimed that she now had 3 years’ experience and a positive skills assessment for the position of cook. The applicant also told the Tribunal that her current employer was prepared to sponsor her for a further visa.

17. The applicant requested that the Tribunal grant her further time to pursue other visa options. While the Tribunal acknowledges the efforts expended by the applicant pursue other visa options, and that the closure of her nominators business was a factor outside her control, it is also apparent that the applicant has been aware for a number of years of the prospects of success for the application under review. The granting of additional time will not change the review outcome. The applicant told the Tribunal that she had already lodged an application with the Department for a subclass 494 visa but was awaiting the outcome. This outcome is not dependent on the matter under review and is not a reason to withhold from proceeding to a decision in this matter. As to any prospective sponsorship by her current employer, it is noted that the applicant has been working for this employer for over two years, and was provided with approximately 6 weeks notice of the hearing date. There has been time already to undertake these steps. For these reasons the Tribunal declined to delay proceeding to a decision in this matter.

18. The Tribunal finds that the relevant nomination has not been approved. It therefore follows that the applicant does not meet cl 187.233(3) of Schedule 2 to the Regulations.

19. Although it is not necessary for the Tribunal to make further findings on the material before it the Tribunal also is not satisfied that the position would still be available to the applicant and she does not met cl 187.233(5) of Schedule 2 to the Regulations.

20. Therefore, cl 187.233 of Schedule 2 to the Regulations is not met.

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 second named visa applicant has applied for the visa as a member of the family unit of a person who satisfies the primary criteria. As the Tribunal has found that the applicant does not satisfy the primary criteria it follows that the second named visa applicant does not meet the secondary criteria for the visa. There is no evidence that the second named visa applicant would otherwise meet the primary criteria.

    decision

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

    Penelope Hunter
    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.