Pawale (Migration)

[2022] AATA 3232

Pawale (Migration) [2022] AATA 3232 (11 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amishu Balasaheb Pawale
Mrs Manisha Pawale
Master Jash Amishu Pawale

CASE NUMBER:  1837027

HOME AFFAIRS REFERENCE(S):          BCC2017/3027144

MEMBER:Susan Trotter

DATE:11 February 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 11 February 2022 at 4:20pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – accountant – subject of approved position nomination – related nomination application refused – consent to decision without hearing – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(b)
Migration Regulations 1995 (Cth), Schedule 2, cls 187.233(3), 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 (Cth) (the Act).

2. The applicants applied for the visas on 22 August 2017. The first-named applicant (the applicant) is a now 45-year-old citizen of India. The second-named applicant is a now 39-year-old citizen of India and is identified in the visa application as being the wife of the applicant. The third-named applicant is a now 11-year-old citizen of India and is identified in the visa application as being the son of the applicant.

3. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

4. 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.

5. In the present case, the applicant, as primary visa applicant, applied for the visa in the Direct Entry stream, to work in the nominated position of Accountant (General) for Supermarket Investa Group Pty Ltd (the nominator), the applicant for approval of a nomination in relation to the nominated position.

6. The second-named and third-named applicants applied on the basis of each being a member of the family unit of the applicant.

7. The delegate refused to grant the visas on the basis that cl.187.233(3) of Schedule 2 to the Regulations was not met because the associated nomination had not been approved as required. 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 them to each be a member of the family unit of a person who met the primary visa criteria.

8. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 18 December 2018 and provided the Tribunal with a copy of the delegate’s decision.

9. On 8 February 2022, the Tribunal wrote to the applicant noting that it had considered the material before it but was unable to make a favourable decision on this information alone and invited the applicant to appear before the Tribunal on 14 March 2022 to give evidence and present arguments relating to the issues arising in relation to the application.

10. On 11 February 2022, the applicant responded to the Tribunal’s 8 February 2022 invitation stating that he did not wish to participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow the applicant to appear before the Tribunal.

11. The applicant has therefore consented to the Tribunal proceeding to make a decision on the review without appearing before it: subparagraph 360(2)(b) of the Act.

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(3).

    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 approved nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application.

15. In addition, this criterion also requires that:

    (a)  the person who will employ the applicant is the person who made the nomination;

    (b)  the nomination has been approved and has not been subsequently withdrawn;

    (c)   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 of the Regulations); or it is reasonable to disregard any such information;

    (d)  the position is still available to the applicant; and

    (e)  the visa application was made no more than six months after the nomination of the position was approved.

16. The delegate noted in their decision that the nomination application lodged by the nominator was refused on 5 October 2018. No evidence to that before the delegate has been provided to the Tribunal by the applicant in relation to nomination application. There is no evidence before the Tribunal that the position to which the application relates is the subject of an approved nomination as required.

17. On the evidence before it, the Tribunal finds that there is no approved nomination and the Minister has not approved the nomination to which the applicant’s visa application relates. The Tribunal is therefore not satisfied that the applicant meets the requirements of cl.187.233(3) as required at the time of decision.

18. 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 stream. 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 to refuse to grant the applicant a Subclass 187 visa must be affirmed.

19. The Tribunal must also affirm the decision not to grant the second-named and third-named applicants Subclass 187 visas as they do not meet the secondary visa criterion requiring them to each be a member of the family unit of a person who holds a Subclass 187 visa, and there is no evidence that they meet the primary visa criteria for this subclass in their own right.

    decision

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

    Susan Trotter
    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.