Saini (Migration)

[2021] AATA 5597

Saini (Migration) [2021] AATA 5597 (6 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Deepak Saini

CASE NUMBER:  1833610

HOME AFFAIRS REFERENCE(S):          BCC2016/1793124

MEMBER:Sean Baker

DATE:6 December 2021

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 6 December 2021 at 4:21pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cafe or Restaurant Manager – no approved nomination – nomination review application withdrawn – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, r 1.13; Schedule 2, cl 187.233

CASES

Hasran v MIAC [2010] FCAFC 40

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 20 May 2016. 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 Cafe or Restaurant Manager.

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 nomination associated with the application lodged by AK & ESHAAN PTY. LTD, being the nomination referred to in paragraph 187.233(1), had been refused by the Department.

6. On 8 November 2021 the Tribunal wrote to the review applicant pursuant to s 359A of the Act, inviting the review applicant to provide comment on information that it considered would be part of the reason for affirming the decision under review in writing.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 22 November 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

9. The applicant was represented in relation to the review by his registered migration agent.

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 there is an approved nomination in place for the position

    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 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:

    ·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.

14. As noted above, this application was refused by the Department on the basis that the nomination of the position mentioned in cl. 187.233(1) lodged by AK & ESHAAN PTY. LTD. was refused by the Department on 22 June 2018.

15. As further noted above, the Tribunal wrote to the applicant pursuant to s.359A. The Tribunal put to the applicant information that on 14 April 2021 the Tribunal accepted the withdrawal of an application for review made by Ak & Eshaan Pty Ltd relating to a decision of 22 June 2018 by a delegate for the Minister of Home Affairs to refuse the nomination application. The letter explained the relevance and consequence of this information being relied on by the Tribunal and invited the applicant to comment on the information. As above, the applicant did not respond within time, nor has he responded subsequently.

16. I find that the nomination identified in cl. 187.233(1) is that of AK & ESHAAN PTY. LTD. in relation to the applicant in relation to the nominated position of Cafe or Restaurant Manager. I find that this nomination was refused by the Department on 22 June 2018.

17. I find that on 14 April 2021 the Tribunal (differently constituted) found it had no jurisdiction to review the decision of the Department to refuse that nomination.

18. I find that the nomination has been refused and the Tribunal has found it has no jurisdiction to review this refusal. I find therefore that the applicant does not satisfy cl. 187.233(3) because the nomination has not been approved.

19. Therefore, cl 187.233 is not met.

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 must be affirmed.

    decision

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

    Sean Baker
    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

    (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.