Seetharaman (Migration)

[2019] AATA 5900

Seetharaman (Migration) [2019] AATA 5900 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gopinath Seetharaman
Mrs Sudha Nagarajan
Master Shree Seetharaman Gopinath
Master Sriman Seetharaman Gopinath

CASE NUMBER:  1917897

HOME AFFAIRS REFERENCE(S):          BCC2018/1276925

MEMBER:Alan McMurran

DATE:18 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 18 December 2019 at 3:37pm

CATCHWORDS

MIGRATION – Regional Employed Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – approved nomination – sponsor in liquidation – no approved nomination – 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 lodged 4 July 2019 for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 16 March 2018. 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. 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 Subclass 187 visa in the Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 (3) of Schedule 2 to the Regulations because the Minister had not approved a nomination made for the applicant to work in the nominated occupation.

6. The applicants appeared in person before the Tribunal on 17 December 2019 to give evidence and present arguments. The Tribunal received oral evidence from the primary review applicant.

7. The applicants were represented in relation to the review by their registered migration agent Vaneet Chadha, from Royal Migration. The representative did not appear at the hearing.

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

   Background

9. The applicant is a citizen of the Republic of India. The secondary applicants are respectively the applicant’s wife and two minor children.

10. The applicant gave a history of having worked in Australia on a 457visa as a cook, firstly at Darling Harbour for approximately 22 months, and then at the Globe Hotel in Gloucester in New South Wales. The applicant’s 457 visa expired in August 2018, while this Subclass 187 visa application, and now review, were still pending.

11. The applicant sought a position as a cook with the sponsor, Sapper Industries Pty Ltd, to work in another hotel at Denman in New South Wales. The applicant told the Tribunal that the sponsor had gone into liquidation “without notification”, after lodging the nomination application. The applicant said he had never actually worked at the venue or for the sponsor.

12. The applicant complains that while waiting for consideration of this visa application, the nominator went into liquidation and he was not told either by the Department or by his lawyer until after the nomination decision was made by the Department.

13. The applicant said that he understood that as the sponsor was “not there” there would be problems with his visa application. The applicant does not have another nomination application on foot nor is he subject to any refused nomination application still under review. The applicant said he is continuing to look for an employer willing to sponsor him.

14. The applicant is concerned that he has been in Australia for a lengthy period (approximately 12 years since 2006), that he has spent approximately $15,000 on the visa applications and has not done anything wrong. The Tribunal explained that the 457 program is for temporary entrants to Australia and does not guarantee permanent residency, even after working for a number of years. It is necessary in order to obtain permanent residency, that an applicant meet the requirements of the relevant Regulations and in respect of the particular visa sought. It is one of the requirements in this application that there is an approved nomination by a sponsor.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant can meet the requirements of cl. 187.233 and on the basis the Minister has approved the nomination of an occupation applied for by the visa review applicant.

    Nomination of a position

16. 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.

17. 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.

18. The Tribunal is satisfied that the Department made a decision on 17 May 2019 refusing an application by the sponsor, nominating the applicant for the occupation of Cook.

19. The Tribunal finds that there is no approved nomination nor any application under review in respect of any refused nomination application.

20. On the available evidence and information, the Tribunal is satisfied that as the Minster has not approved a nomination in favour of the applicant’s sponsor, it is not necessary for the Tribunal to consider any further or other criteria, as this application for review by the nominee cannot succeed without an approved nomination.

21. The Tribunal finds that cl.187.233 is not met.

22. 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.

    Secondary applicants

23. The secondary applicants are members of the applicant’s family and dependent upon the primary review applicant succeeding in this review.

24. As the application by the primary review applicant fails for want of an approved nomination by the Minister, the dependent family members’ applications as secondary to this application must also fail.

    DECISION

25. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Alan McMurran
    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.