Rai (Migration)

[2021] AATA 1339

Rai (Migration) [2021] AATA 1339 (17 March 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Anish Rai

Mrs Jigyasha Karki

CASE NUMBER:  1816757

DIBP REFERENCE(S):  BCC2016/2846756

MEMBER:  Sheridan Lee

DATE AND TIME OF

ORAL DECISION AND REASONS:          17 March 2021 at 10:20 am (VIC time)

DATE OF WRITTEN RECORD:                31 March 2021

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decisions under review.

Statement made on 31 March 2021 at 5:14 pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – subject of an approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

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

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 31 May 2018 to refuse to grant the visa applicants Regional Employer Nomination (Permanent) Subclass 187 visas under the Migration Act 1958 (the Act).

1. At the hearing on 17 March 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. On 27 August 2016, Mr Rai and his partner applied for Subclass 187 visas in the direct entry stream nominated by Darwinet WA Pty Ltd. The nomination application was refused by a delegate of the Minister for Immigration on 30 April 2018 and Dalenet (WA) Pty Ltd applied to the tribunal for a merits review of the decision. On 4 December 2020 the tribunal affirmed the decision under review.

1. On 23 February 2021 the tribunal wrote to Mr Rai and advised him of the decision on the related nomination. The letter invited Mr Rai to comment on or respond to the information and advised that the information was relevant to the review because it is a requirement for the grant of the visa that the person specified in the visa application is the subject of an approved nomination.

1. Finally, the letter advised that if the tribunal were to rely on the information in making its decision, it may find that the decision specified in the visa application is not the subject of an approved nomination. This would mean that he does not satisfy the requirements for the grant of the visa and the tribunal must affirm the decision under review.

1. On 6 March Mr Rai responded to explain the circumstances that led to him not having an approved nomination and to advise that he has found a new employer.

1. As discussed with Mr Rai today, Clause 187.233 requires that the position to which the application relates be the subject of an approved application in the direct entry stream located in regional Australia. The requirement cannot be satisfied by a later nomination of position made by a different employer. The position to which the visa applicant relates must be the position in relation to which the declaration mentioned in paragraph 111(4)(c)(iii)(d) was made.

1. In the current matter the nomination application lodged by the applicant’s employer was refused. No subsequent nomination applications were made and the applicant has acknowledged that he is not the subject of an approved or pending nomination in the Direct Entry stream.

1. The applicant has only sought to satisfy the criteria for a subclass 187 visa in the direct entry scheme. No claims have been made in relation to the other visa stream as the requirements that must be met by a person seeking a visa in the direct entry stream have not been met, the decision under review must affirmed.

1. The second-named applicant applied for the visa on the basis that she is a member of a family unit of another person who holds a subclass 187 visa. As the primary applicant was found not to meet the prescribed criteria, the secondary applicant does not satisfy Clause 187.311.

1. The tribunal affirms the decision not to grant the applicant the regional employer nomination visa.

DECISION

1. The Tribunal affirms the decisions under review.

Sheridan Lee Member