Sachdeva (Migration)

[2020] AATA 1095

Sachdeva (Migration) [2020] AATA 1095 (28 February 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mrs Aadish Sachdeva

CASE NUMBER:  1902367

DIBP REFERENCE(S):  BCC2017/2361321

MEMBER:  Sheridan Lee

DATE AND TIME OF

ORAL DECISION AND REASONS:         28 February 2020 at 10:59 am (VIC time)

DATE OF WRITTEN RECORD:                8 April 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 8 April 2020 at 3:10 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – 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 a decision made by a delegate of the Minister for Immigration on 29 January 2019 to refuse to grant the visa applicant a Regional Employer Nomination (Permanent) Subclass 187 visa under the Migration Act 1958 (the Act).

2. At the hearing on 28 February 2020, 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

3. On 3 July 2017, Mr Sachdeva lodged an application with the Department of Home Affairs for a Regional Employee Nomination subclass 187 visa. The criteria for a subclass 187 visa are set out in part 187 of Schedule 2 to the Migration Regulations 1994.

4. In the present case the applicant is seeking the visa in the direct entry stream to work in the nominated occupation of cook. Clause 187.233 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. This requirement cannot be satisfied by a later nomination of a position made by a different employer.

5. In the current matter the nomination application lodged by the applicant’s prospective employer and consequently his visa application was refused by the department and a copy of that decision was provided to the tribunal. The applicant has acknowledged that he has not got an ongoing nomination application pending.

6. The applicant has requested some additional time in which to secure a new nomination. As discussed with the applicant, the tribunal cannot defer making a decision indefinitely and a new nomination, as previously mentioned, could not save the current visa application. For those reasons, I consider the tribunal is bound to deal with the case based on the information before it as required by the guidelines of good practice.

7. As the applicant is not the subject of an application for approval of a nomination in the direct entry stream, he does not meet the requirement in clause 187.233. The applicant has only sought to satisfy the criteria for a subclass 187 visa in the direct entry stream and the claims have been made in respect of the other visa streams.

8. As a requirement that must be met by a person seeking the visa in the direct entry stream has not been met, the decision under review must be affirmed. The tribunal affirms the decision not to grant the applicant a Regional Employer nomination visa.

   DECISION

9. The Tribunal affirms the decision under review.

   Sheridan Lee
   Member

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