Patel (Migration)

[2020] AATA 5325

Patel (Migration) [2020] AATA 5325 (9 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Shekhaben Miteshkumar Patel
Mr Mugeshkumar Kantibhai Patel

CASE NUMBER:  1803519

HOME AFFAIRS REFERENCE(S):          BCC2016/3860185

MEMBER:Karen McNamara

DATE:9 October 2020

PLACE OF DECISION:  Sydney

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

The Tribunal does not have jurisdiction in this matter in relation to the second named applicant.

Statement made on 9 October 2020 at 2:51pm

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 – present in the migration zone – decision under review affirmed        

LEGISLATION
Migration Act 1958, ss 5, 65, 338, 347, 359
Migration Regulations 1994, r 1.13; 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 17 November 2016. 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 Ms Shekhaben Miteshkumar Patel (the applicant) is seeking the visa in 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 of Schedule 2 to the Regulations which required Ms Shekhaben Miteshkumar Patel to be the subject of an approved nomination. The delegate found that the nomination lodged by Prime Home Insulation Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration and Border Protection on 18 December 2017.

6. Accordingly, as the nomination application had been refused, the delegate found that cl.187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant, Mr Mugeshkumar Kantibhai Patel could not be granted a Subclass 187 visa, as he did not meet the secondary visa criterion (cl.187.311) requiring him to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

8. The applicants applied to the Tribunal on 9 February 2018 for review of the delegate’s decision.

9. On 25 August 2020, the applicants represented Ms Shekhaben Miteshkumar Patel, appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jatinder Singh Sandhu (the nominator) in the related matter for the nomination application (AAT Case file 1800400). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

10. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

11. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

    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 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 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. On the 21 September 2020, the Tribunal affirmed the decision refusing the approval of the nomination made by Prime Home Insulation Pty Ltd (the nominator) in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.187.233(3) and as such cl.187.233 is not met.

17. On 22 September 2020, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Prime Home Insulation Pty Ltd, which the Tribunal explained was relevant to the applicant meeting cl.187.233(3) which requires the nomination to be approved. As the nomination has been refused, cl.187.233(3) is not met.

18. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 6 October 2020 the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act.

19. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, pursuant to s.359C(2) the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

20. At the hearing of 25 August 2020, the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in her case, her visa application is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

21. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.187.233(3) of Schedule 2 to the Regulations.

22. As the first named applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

23. There is no evidence before the Tribunal to indicate that the second named applicant meets the primary requirements for grant of the visa.

    Jurisdiction in relation to the second named applicant

24. Section 347(2) 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) of the Act, an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and s.347(3) of the Act.  The term migration zone is defined in s.5(1) of the Act and generally means the Australian States and Territories.

25. Department records indicate the second named applicant Mr Mugeshkumar Kantibhai Patel was offshore at the time of the primary decision on 8 February 2018 and at the time the application for review was lodged on 9 February 2018. In the circumstances, the Tribunal finds that Mr Mugeshkumar Kantibhai Patel was not in the migration zone at the relevant time. 

26. Therefore, the application for review made by the second named applicant, Mr Mugeshkumar Kantibhai Patel does not meet the requirements of s.347 of the Act and accordingly, the Tribunal does not have jurisdiction in relation to the second named applicant.

27. 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

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

    ·The Tribunal does not have jurisdiction in this matter in relation to the second named applicant.

    Karen McNamara
    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.