Patel (Migration)

[2022] AATA 2334

Patel (Migration) [2022] AATA 2334 (5 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Maulik Babulal Patel
Mrs Pinki Maheshkumar Patel

REPRESENTATIVE:  Mrs Preeti Puri (MARN: 0960289)

CASE NUMBER:  1908941

HOME AFFAIRS REFERENCE(S):          BCC2018/1277532

MEMBER:P. Maishman

DATE AND TIME OF

ORAL DECISION AND REASONS:         5 May 2022 at 11:51 am (WA time)

DATE OF WRITTEN RECORD:                19 May 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions under review.

Statement made on 19 May 2022 at 1:28pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – baker –no approved nomination –  tribunal affirmed nomination application – not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 187.233

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 26 March 2019 to refuse to grant the visa applicants Regional Employer Nomination (Permanent) Subclass 187 visas under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 5 May 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The application before me is for review of a decision made by a delegate of the Minister of Home Affairs to refuse to grant a regional employer nomination class RN visa under section 65 of the Migration Act. Mr and Mrs Patel applied for the visas on 16 March 2018. The criteria for a subclass 187 visa are set out in part 187 of schedule 2 to the Migration Regulations.

4. Relevantly, 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 only to satisfy 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, those being the temporary residence transition stream or the direct entry stream. In this case, Mr Patel is seeking the visa in the direct entry stream to work in the nominated position of baker, with an ANZ SCO code of 351111. 

5. The delegate refused Mr Patel’s application for a visa because it says he did not meet clause 187.233(3) of schedule 2 to the regulations because the application by Jakruma Pty Ltd as trustee for the Jakruma Deshpande Family Trust for nomination of the position to which the visa application relates was not approved.

6. Mr Patel appeared before the Tribunal on 5 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Deshpande, who is the director of Jakruma Proprietary Limited as trustee for the Jakruma Deshpande family trust.

7. The applicant’s representative, Ms Preeti Puri, migration agent’s reference number 0960289, did not attend the hearing. The Tribunal had before it a copy of the department’s file, and the issue in the case is whether there is an approved nomination. Today, 5 May 2022, I made a decision in the application of the nominator that adversely affects Mr Patel.

8. I adopted the procedure provided for by section 359AA to formally put the adverse information to Mr Patel. The Tribunal explained to Mr Patel that a decision had been made to affirm the decision not to approve the nomination application of Jakruma Proprietary Limited as trustee for the Jakruma Deshpande family trust.

9. The Tribunal explained the information was relevant to his application because clause 187.233(3) required that the nomination has been approved. The consequences of the adverse information is that his application cannot succeed because he does not meet an essential criteria for the grant of the visa.

10. Mr Patel understood the information that I gave him and declined an offer to take more time within which to comment or respond. Mr Patel gave evidence at the hearing and I accept that evidence that he is a hard and diligent worker and is presently working as a baker for a different employee.

11. He has lived in Australia with his wife and they now have a child, they have lived in Australia for nine years and an unfavourable decision is based on circumstances beyond his control.  Mr Patel’s view is that the decision of the department was not well founded because he got paid each fortnight, or he got paid regularly, in accordance with his contract.

12. The financial capacity of the nominator was not understood by the delegate, that is reinforced by the evidence of Mr Deshpande who gave evidence that he worked independently from the business entity that employed Mr Patel. Using the income that he made separately, he was confident that he could continue to support the business to continue to support Mr Patel or to pay him in accordance with his contract.

13. Unfortunately, the Tribunal has no discretion to disregard the requirements in clause 187.233, specifically (3) that requires that the nomination for the position has been approved, and in this case, the nomination has not been approved. Accordingly, Mr Patel cannot meet the requirements of clause 187.233 and the Tribunal must affirm the decision to refuse the visa.  Mr Patel has only sought to satisfy the criteria for a subclass 187 visa in the direct entry stream, and no claims have been made in respect of other visa streams, namely the transitional stream.

14. 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.  There is no evidence before the Tribunal that Mrs Patel, the secondary applicant, claims to meet the common criteria, as well as the criteria in one of, either of, the alternative visa streams. For these reasons, the decision must be affirmed. 

    DECISION

15. The Tribunal affirms the decisions under review.

    P. Maishman
    Member