Raghu Rajan (Migration)

[2020] AATA 2297

Raghu Rajan (Migration) [2020] AATA 2297 (29 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raghu Rajan

CASE NUMBER:  1918747

HOME AFFAIRS REFERENCE(S):          BCC2017/3976192

MEMBER:Alan McMurran

DATE:29 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 29 May 2020 at 2:54pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Employer Nomination Scheme) – direct entry stream – related position nomination refused – no jurisdiction to review refusal – no response to tribunal’s communication – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 11 July 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 5 July 2019 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) 187 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 27 October 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager ANZSCO 142111. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the applicant was not the subject of a nomination which the Minister has approved.

5. The Tribunal wrote to the applicant on 12 May 2020 inviting the applicant to respond to information that the applicant was not the subject of an approved nomination, and which would be the reason or part of the reason for affirming the Department’s decision under review.

6. The applicant was requested to respond by 26 May 2020, failing which the applicant would lose any right to a hearing to present arguments and/or make submissions. The applicant did not respond within time, or at all. No request was made for an extension of time and the tribunal is not aware of any information that the related nomination application is subject to any further review or as to the circumstances of the applicant.

7. The applicant has lost his right to appear in the Tribunal and the Tribunal has elected to decide the review without taking any further action to obtain the applicant’s views, and to decide the matter on information presently available.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the Minister has approved the nomination.

10. The Tribunal has available to it the information on the Tribunal’s case file, together with the Department’s file.

    Nomination of a position

11. 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.

12. On the available information, the Tribunal finds that the Department decided to refuse the nomination by Praise Enterprise Pty Ltd on 31 May 2019. That decision was subject to review by the Tribunal in case file 1915212.

13. On 4 February 2020, the Tribunal decided it had no jurisdiction to consider further the review application by the nominator in case file 1915212, as the nominator was deregistered on 6 November 2019, the effect of which was that the nominator no longer had standing to continue the review application

14. On the information available, the Tribunal finds therefore that the applicant is not the subject of a nomination application which the Minister has approved.

15. Therefore, cl.187.233 is not met.

16. 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

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

    Alan McMurran
    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.