Sachdeva (Migration)

[2022] AATA 1015

Sachdeva (Migration) [2022] AATA 1015 (11 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jasmeet Singh Sachdeva

CASE NUMBER:  1905214

HOME AFFAIRS REFERENCE(S):          BCC2017/4799673

MEMBER:Stephen Witts

DATE:11 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 11 March 2022 at 7:36am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – subject of an approved nomination – no response to s 359A invitation – 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 for review of a decision made by a delegate of the Minister for Home Affairs 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 applied for the visa on 15 December 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was the subject of an approved nomination.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the subject of an approved nomination.

   Nomination of a position

8. 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.

9. 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 reg 1.13A and reg 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.

10. The Tribunal notes that it wrote to the applicant on 24 February 2022 under 359A of the Act inviting the applicant to comment or respond to information. It was stated that the member will be conducting the review in relation to the application made by the applicant in respect of the decision to refuse to grant a Regional Employer Nomination (Permanent) visa.

11. It was also stated that in conducting the review it is a requirement by the Migration Act 1958 to invite the applicant to comment on or respond to certain information which it considered would, subject to the applicant’s comments or response, be the reason or part of the reason for affirming the decision under review.

12. It was noted that the particulars of the information are that the application for approval of the nominated position made by AVNEET HOLDING Pty Ltd (the nominator) was refused by a delegate of the Minister. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated occupation has not been approved.

13. It was further noted that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the application is the subject of an approved nomination.

14. It was noted that if the Tribunal relied on this information in making its decision it may find that the position specified in the application is not the subject of an approved nomination and that this would mean that the applicant did not satisfy a requirement for the grant of the visa and that it must affirm the decision that is under review. The applicant was invited to give comments on or respond to the above information in writing and that these comments or responses should be received by 10 March 2022. It was also stated that if the applicant cannot provide written comments or a response by 10 March 2022 it may ask for an extension of time in which to provide such comments or response.

15. It was further stated that if the Tribunal did not receive the applicant’s comments or responses within the period allowed for or extended it may make a decision without taking any further action to obtain the applicant’s views on the information.

16. The Tribunal notes that no response was received to this.

17. The Tribunal notes that no evidence was provided by the applicant in regard to the application and that therefore the Tribunal finds that the applicant is not the subject of an approved nomination.

18. Therefore, cl 187.233 is not met.

19. 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

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

    Stephen Witts
    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.