Sareen (Migration)

[2018] AATA 3419

Sareen (Migration) [2018] AATA 3419 (31 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dheeraj Sareen

CASE NUMBER:  1814184

DIBP REFERENCE(S):  BCC2016/2234769

MEMBER:Karen Synon

DATE:31 July 2018

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 31 July 2018 at 1:53pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Previous nomination refused - Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

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 (the Act).

2. The applicant applied for the visa on 1 July 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 (the Regulations). The primary criteria must be satisfied by at least one applicant. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Café or Restaurant Manager’.  This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

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did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination lodged by ‘Jack & Jill Restaurant’ was withdrawn on 16 April 2018.

6. The applicant appeared before the Tribunal on 31 July 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is cl.187.223.

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

10. 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 r.1.13A and r.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.

11. Prior to the hearing the applicant provided a statement in which he writes that the restaurant is not in business anymore and it closed due to “tiffs or personal reasons among the partners which has got nothing to do with my application”.  He worked in the restaurant for almost 13 months and lodged his visa during this time and now, after two years, he has missed out on other job opportunities while he was committed to the restaurant.  The applicant has been in Australia for a decade and always had plans to settle here.  He thinks it unfair he will be suffering for something that is not his fault.  The applicant also provided documents regarding his 2016 and 2017 tax returns.  At the commencement of the hearing the applicant provided a copy of the Employment Agreement he signed with Jack & Jill Restaurant.

12. During the hearing the Tribunal explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to him.  As recorded in the primary decision, a copy of which he provided to the Tribunal, this position nomination is no longer available to him as the employer ‘Jack & Jill Restaurant’ withdrew its nomination on 16 April 2018.

13. Invited to make any submissions the applicant said he will suffer for something that is not his fault and he applied in 2016 but the restaurant withdrew the nomination.  He is now illegible to apply for another visa and will be starting again from scratch.  He is very disappointed but understands that the nomination for the occupation of ‘Café or Restaurant Manager’ with ‘Jack & Jill Restaurant’ has been withdrawn.

14. Based on the information before it in the primary decision and confirmed by the applicant’s oral and written evidence, the Tribunal finds that the applicant is not the subject of an approved nomination.  Therefore, cl.187.233 is not met.

15. 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

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

    Karen Synon
    Member