Puri (Migration)

[2022] AATA 1624

Puri (Migration) [2022] AATA 1624 (18 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Krishan Puri

REPRESENTATIVE:  Mr Shahzad Latif (MARN: 1679161)

CASE NUMBER:  1908322

HOME AFFAIRS REFERENCE(S):          BCC2017/2955788

MEMBER:Susan Trotter

DATE:18 March 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 18 March 2022 at 2:19pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – café or restaurant manager – subject of approved position nomination – related nomination application refused – nominator deregistered and no jurisdiction for tribunal to review nomination refusal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 on 18 March 2019 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, a now 28-year-old citizen of India, applied for the visa on 17 August 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Café or Restaurant Manager for Punjabi Spices Pty Ltd, the applicant for approval of a nomination in relation to the nominated position.

5. The delegate refused to grant the visa 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.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 5 April 2019 and provided the Tribunal with a copy of the delegate’s decision.

7. The applicant appeared before the Tribunal by telephone on 14 March 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing in this manner as the hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearing in this manner having regard to the nature of this matter and the circumstances of the applicant. 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 video and telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments, given an opportunity to respond to the matters in issue and to fully participate in the hearing.

8. The applicant was represented in relation to the review. The applicant’s representative did not participate in the hearing.

9. The Tribunal has had regard to the applicant’s oral evidence, the Departmental file, the Tribunal file and the documentation provided by the applicant to the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

    Nomination of a position

12. 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.

13. 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); 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.

14. The applicant told the Tribunal that it has been two years since he was working for the Australian citizen employer. He said he knows the nominator has now been closed and he is not working there anymore and is working somewhere else. He said the only thing he wants to know is why that happened.

15. The Tribunal discussed with the applicant that, as noted in the delegate’s decision, the nomination application lodged by Punjabi Spices Pty Ltd was refused and that is why his visa application had been refused. The Tribunal stated that the only thing it could look at is whether there is an approved nomination or not, and not the reasons why there may not be an approved nomination.

16. The Tribunal put to the applicant[1] that, additionally, there was information before the Tribunal that following the refusal of the nomination application, the nominator sought review of that decision, and on 30 September 2021 this Tribunal (differently constituted) found that it had no jurisdiction to consider that application because the nominating company had been reregistered such that its application could not proceed. The Tribunal explained to the applicant that this information was relevant to the review because if the Tribunal relied upon this and the other information before it and found that there was no approved nomination and no pending review, it would be the reason or part of the reason to affirm the decision under review to refuse to grant the visa to the applicant.

    [1] Pursuant to procedure set out in section 359AA of the Act

17. The Tribunal checked with the applicant that he understood the information and the relevance of the information. The applicant responded that he did.

18. The applicant was invited to respond to or comment on the information. The applicant told the Tribunal that he knew the nomination had not been approved and knew that the visa could therefore not been approved. He repeated that he could just not understand why the nomination application was refused at the time. He said that the employer did not let him know anything. After a while he quit his job - the employer did not even let him know that the restaurant was being closed. The applicant did not seek additional time and said he understood the reason why the visa had been refused was because there was no approved nomination.

19. The evidence before the Tribunal indicates that the associated nomination application has been refused and that there is no pending review of that nomination refusal. As the relevant nomination has not been approved, and cannot now be approved, it follows that the applicant does not meet the requirements of cl.187.233(3). Therefore, cl.187.233 is not met as a whole.

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 in relation to the applicant must be affirmed.

    DECISION

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

    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.