PATEL (Migration)

[2020] AATA 5248

PATEL (Migration) [2020] AATA 5248 (8 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pallavkumar Anupambhai Patel
Mrs Niyatiben Pallavkumar Patel

CASE NUMBER:  1804581

HOME AFFAIRS REFERENCE(S):          BCC2017/770591

MEMBER:Phoebe Dunn

DATE:8 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 08 December 2020 at 11:42am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct entry stream – related position nomination refused – refusal affirmed on review – no substantive response to tribunal’s invitation to comment – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

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 (the Act).

2. The applicants applied for the visas on 27 February 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 (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 Office Manager (ANZSCO 512111).

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 application by H&R Global Food Imports and Exports Pty Ltd (the nominator), being the nomination referred to in cl.187.233(1) (the nomination) was refused by a delegate of the Minister on 2 January 2018 and as such there was no approved nomination.

6. The nominator applied for review of the decision to refuse the nomination application, but on 17 November 2020, the Tribunal affirmed the decision.

7. By letter dated 19 November 2020, the Tribunal wrote to the applicant in accordance with the requirements of s.359A of the Act providing details of information that the Tribunal considered, subject to any comment or response from the applicant, would be the reason or part of the reason for affirming the decision under review.  The Tribunal provided particulars of the information and explained the relevance of it and the consequence of the Tribunal relying on the information in reaching its decision, being that the decision to refuse the nomination application was affirmed on 17 November 2020 and that this meant that the nomination had not been approved as required under cl.187.233(3) of the Regulations.

8. In its letter the Tribunal stated that the information was relevant to the review because it is a requirement for the grant of the applicant’s Subclass 187 visa that the related nomination application for the nominated position has been approved, being the nomination referred to in cl.187.233(1) and in respect of the position to which the applicant made the Subclass 187 visa application and visa declaration. The Tribunal further noted that if the Tribunal relied on this information in making its decision, the Tribunal may find that position to which the Subclass 187 visa application relates is not the subject of an approved nomination and that this would mean that the applicant does not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision that is under review.

9. The applicant was invited to comment on or respond to the information in writing, or to seek and extension of time to do so, by 3 December 2020. By email sent and received on 2 December 2020, the applicant’s representative advised as follows:

   In reply your letter dated on 19 November 2020, we are instructed that as the nomination is refused by Tribunal, Mr Patel wants the matter to be decided on papers.

10. The Tribunal notes that the applicants have failed to make any substantive comments on or response to the adverse information set out in the Tribunal’s letter dated 19 November 2020, instead requesting the Tribunal to make a decision on the papers.  The Tribunal is satisfied that the advice was received from the applicants’ representative with authority to act on their behalf.  Accordingly, as requested by the applicants, the Tribunal has decided to proceed to make a decision on the papers without taking any further action to allow or enable the applicants to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

11. The applicants were represented in relation to the review by their registered migration agent, Mr Jia (Jack) Li.

12. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

14. 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.

15. 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 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.

16. The first named applicant applied for a Subclass 187 visa on the basis of the related nomination application for the nominated position of Office Manager made by the nominator, being the nomination referred to in cl.187.233(1).  The nomination application was refused by a delegate of the Minister on 2 January 2018 and as such the applicant’s Subclass 187 visa was refused as there was no approved nomination as required by cl.187.233(3) of the Regulations.

17. The nominator applied for review of that decision on 22 January 2018, but on 17 November 2020, the Tribunal affirmed that decision. This means that the related nomination has not been approved as required under cl.187.233(3) of the Regulations.

18. As such, and following careful consideration of the material before it, the Tribunal finds that cl.187.233(3) is not met.

19. Therefore, cl.187.233 is not met.

20. 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.

21. The only basis of the application of the second named applicant is that she is a member of the family unit of the person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.187.311(a).  As the first named applicant does not meet the primary criteria and has not been granted a Subclass 187 visa, the decision to refuse the application of the second named applicant must also be affirmed because she does not satisfy cl.187.311.

    DECISION

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

    Phoebe Dunn
    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.