Shah (Migration)

[2022] AATA 4200

Shah (Migration) [2022] AATA 4200 (21 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Puruskar Shah

REPRESENTATIVE:  Mr Jing Zeng (MARN: 0961417)

CASE NUMBER:  1918896

HOME AFFAIRS REFERENCE(S):          BCC2017/5021962

MEMBER:P. Maishman

DATE:21 November 2022

PLACE OF DECISION:  Perth

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

Statement made on 21 November 2022 at 1:38pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – office manager – subject of approved position nomination – refusal of related nomination application affirmed on review – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(1), (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 (Cth) (the Act).

2. The applicant applied for the visa on 1 January 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 (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 Office Manager (ANZSCO 512111).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because there was no approved nomination related to his application.

6. On 13 October 2022 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 31 October 2022. On 19 October 2022 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal had before it a copy of the Department’s file.

10. The applicant gave the Tribunal a copy of the delegate’s notice of decision with the application for review. In summary, the delegate refused the visa because the related nomination lodged by The Trustee For The Whitman Family Trust, being the nomination referred to in paragraph cl 187.233(1), was refused by a delegate of the Minister for Home Affairs on 4 June 2019.  

11. The issue in the present case is whether there is an approved nomination associated with this application.

    Section 359A of the Act

12. On 19 October 2022 the Tribunal wrote to the applicants pursuant to s 359A of the Act. The notice advised the applicants the Tribunal had affirmed a decision of the Department of Home Affairs to refuse the relevant nomination of The Trustee For The Whitman Family Trust. The notification outlined the relevance of that information to the applicants and the consequences of that information being relied on. The notice invited the applicants to comment or respond to the information by 2 November 2022.

13. On 27 October 2022 the Tribunal wrote again to the applicant pursuant to s 359A of the Act citing the correct legislation. The notice advised the applicant the Tribunal had affirmed a decision of the Department of Home Affairs to refuse the relevant nomination of The Trustee For The Whitman Family Trust. The notification outlined the relevance of that information to the applicants and the consequences of that information being relied on. The notice invited the applicant to comment or respond to the information by 10 November 2022.

14. On 8 November 2022 the applicant requested an extension of time within which to respond because he needed more time together relevant documents and gather more information and legal options due to the sudden notice of the refusal.

15. The Tribunal declined the applicant’s request for an extension of time within which to respond or comment. The visa application was made in 2018 and in 2019 the applicant applied to the Tribunal to review the Department’s decision to refuse the visa. The hearing invitation on 13 October 2022 should have alerted the applicant he needed to prepare for the Tribunal to consider his matter. The applicant has given no indication of what documents or information was sought and no explanation why extra time was required to gather those documents or information. The applicant has been represented by the same registered migration agent who lodged his visa application back in 2018 and the Tribunal is of the view the applicant has had ample opportunity to consider his legal options. The information about which the applicant was invited to respond is not complex and the Tribunal is not persuaded the applicant would advance his case by delaying the decision for the submission of further information or comment.

    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 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.

18. On 18 June 2019 The Trustee For The Whitman Family Trust applied to the Tribunal (AAT No. 1915782) for a review of the decision of the delegate on 4 June 2019 to refuse its nomination application. On 12 October 2022 the Tribunal affirmed the decision of the delegate to refuse the nomination application.     

19. The Tribunal wrote to the applicant on 19 October 2022 and 27 October 2022 pursuant to s 359A of the Act, inviting him to comment on the information that there was not an approved nomination related to his visa application by 10 November 2022. The invitation advised the applicant the information was relevant because cl 187.233(3) required the nomination referred to in cl 187.233(1) to be approved. The notice advised that this would be the reason to affirm the decision under review because the applicant could not meet the requirements of cl 187.233(3).

20. The applicant responded to the Tribunal invitation on 10 November 2022. The applicant did not advance any argument that a relevant nomination had been approved.

21. The Tribunal finds, on the facts, the nomination by The Trustee For The Whitman Family Trust, being the application referred to in cl 187.233(1) for the nominated position of Office Manager (ANZSCO 512111) has not been approved and cl 187.233(3) is not met.

22. Therefore, cl 187.233 is not met.

23. 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

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

    P. Maishman
    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.