Sharda (Migration)

[2019] AATA 4281

Sharda (Migration) [2019] AATA 4281 (28 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Abhishek Sharda
Mrs Ausa Sharda

CASE NUMBER:  1905984

HOME AFFAIRS REFERENCE(S):           BCC2017/4363152

MEMBER:R. Skaros

DATE:28 August 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 28 August 2019 at 10:36am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream –the nomination of the applicant was refused–not the subject of an approved nomination – applicant is no longer employed by the nominator–decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 379
Migration Regulations 1994, Schedule 2, cl 187. 233,

CASES
Kaur v Minister for Immigration and Border Protection [2017] FCCA 564

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 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 20 November 2017. 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 visa in Direct Entry stream, to work in the nominated position for Hawkesbury Valley Meat Processors Pty Ltd.  

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 of the position lodged by Hawkesbury Valley Meat Pty Ltd in relation to the applicant was not approved.

6. On review, an officer of the Tribunal wrote to the applicants informing them that it is a requirement for the visa that the nomination for the position identified in the visa application has been approved. The applicants were requested to provide evidence that the relevant position in respect of the applicant is the subject of an approved nomination or evidence that there is a pending application for review of a decision to refuse the relevant nomination.

7. After requesting an extension of time to provide a response, which was granted, the applicant provided a written submission to the Tribunal, which was attached to an email dated 9 May 2019. The Tribunal has had regard to the information in the submissions further below.

8. On 21 June 2019 the Tribunal wrote to the review applicants advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicants to give evidence and present arguments at a hearing on 9 July 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

9. No response to the hearing invitation was received and the applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were properly invited to a hearing in accordance with s.379A(5). The hearing invitation was sent to the most recent email address provided in connection with the review as advised by the applicant. The invitation has not been returned to sender.

10. On 25 July 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act and invited the applicants to provide comments on information that the Tribunal considered would be part of the reason for affirming the decision under review in writing. The information related to Departmental records which indicated that the nomination, against which the applicant made the required declaration in his visa application, was refused by the Department on 22 January 2019. It also noted that there was no evidence, either on the Department’s records or the Tribunal’s records, which indicates that the relevant nomination has been subsequently approved or that the nominating employer had applied for review of the decision to refuse the relevant nomination. The Tribunal explained to the applicants the relevance of the information and informed them that if it relied on the information it would find that the relevant nomination in relation to the applicant has not been approved and in the circumstances the applicant would not be able to meet the requirements in cl.187.233(3).

11. The invitation was sent to the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 8 August 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

12. On 7 August 2019 at 5:04pm, in an email to the Tribunal, the review applicant stated that he is in the process of contacting his previous employer and is looking for a new employer as well and requires more time. The Tribunal took this to mean a request for an extension of time to respond to the s.359A letter and, after carefully considering the history of the review before the Tribunal, decided not to grant an extension of time. On 8 August 2019 at 9:19 am, the Tribunal wrote to the applicants informing them that it had decided not to grant the extension of time and that the comments or response should be received by 8 August 2019 as previously advised, and that if they were not so received, the Tribunal may proceed to a decision on the information before it.

13. The review applicants have not provided the comments within the prescribed period. The Tribunal notes that the applicant has been on notice of the issue in the review since the delegate’s decision. On 27 March 2019, in a general letter to the applicant, the Tribunal informed the applicant that his nomination had been refused and that there was no record of the nominator having applied for review of the nomination refusal. The applicant was invited to provide information about the status of the nomination. After requesting an extension of time to respond, the applicant informed the Tribunal that he has been unable to contact the nominator. The Tribunal notes that the applicants were invited to a hearing which they failed to attend. The hearing invitation was sent to the applicants at the same email address as the s.359A letter, to which the applicant responded, and has not been returned to sender. The same information, regarding the nomination having been refused and there being no record that the nominator had applied for review, was particularised in a letter to the applicants under s.359A. The applicants sought an extension of time to respond to the s.359A letter, however, given the prolonged procedural history of this matter, the Tribunal decided that the applicant has had sufficient time to address the issue in the review. Furthermore, the applicants have not provided any information or evidence which suggests that this review has any prospect of success. For these reasons, the Tribunal decided not to grant the extension of time. In the circumstances, the Tribunal has decided to proceed to a decision on the information before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the relevant nomination has been approved.

    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. In addition, this criterion also requires that the nomination has been approved.

17. The applicant applied for the visa on the basis of a nomination of a position made by Hawkesbury Valley Meat Processors Pty Ltd (the associated nomination). The Department refused the associated nomination. Consequently, the visa application was also refused. 

18. The applicants applied for review of the decision to refuse the visa, but there was no record of the nominator having applied for review of the decision to refuse the nomination. The applicant was requested to provide evidence that the associated nomination had been approved or that the nominator had applied for review of the decision refusing the nomination. In his response to the Tribunal on 9 May 2019, the applicant submitted that he has tried unsuccessfully to contact his employer on several occasion. He stated that he worked for Hawkesbury Valley Meat Processors Pty Ltd and that the previous employer advised him that a nomination had been lodged and they were awaiting the reply. The applicant stated that he is planning to apply for a new nomination through a prospective employer who is willing to offer him a position on the basis that he should have a positive skills assessment as an Office Manager. He stated that he wants the Tribunal to consider his circumstances on natural justice grounds because, if there is no pending review of the nomination refusal, it is beyond his control. The applicant requested, as understood by the Tribunal, that no decision be made on his application until he has had a fair chance to obtain a new nomination through a prospective employer. He stated that if his request was not adhered to then he would have to return to India through no fault of his own. He stated that he has the experience and can transfer his skills and knowledge to local residents and there will be social and economic benefits if he is granted the visa as he will contribute to the society by paying taxes.

19. As noted above, the applicants have since not appeared before the Tribunal at the scheduled hearing and no further information of substance was provided to the Tribunal in response to the invitation to comment on adverse information.

20. The Tribunal has had regard to the applicant’s request to consider his circumstances on natural justice grounds, however, there is no provision in the legislation to take into account the applicant’s circumstances. The issue before the Tribunal is limited to whether the associated nomination, that is the nomination made by made by Hawkesbury Valley Meat Processors Pty Ltd in relation to the applicant, has been approved.

21. The applicant has indicated that he has been unable to contact the nominator and he has not been able to provide any substantive evidence indicating that the associated nomination has been approved or that the nominator has sought review of the nomination refusal. The applicant’s written response suggests that he is no longer employed by the nominator and that he has lost contact with the nominator and is pursuing employment with a different employer. In the absence of an approved nomination the applicant cannot satisfy the requirements in cl.187.233(3).

22. The Tribunal has also had regard to the applicant’s request to delay the decision on the review so that he can obtain a new nomination, however, there would be no merit in delaying the making of the decision because a new nomination would not assist the applicant in this case. The requirements in cl.187.233 were the subject of judicial consideration in the case of Kaur v Minister for Immigration and Border Protection [2017] FCCA 564 which held that the nomination relied upon to satisfy cl.187.233 must be the one which had been made at the time of the visa application and could not be a later nomination, even if the later nomination were made by the same employer in relation to the same position as the nomination made at the time of the visa application.

23. As the applicant cannot rely upon another nomination to meet the requirements in cl.187.233, the Tribunal does not consider it appropriate to delay the making of its decision.

24. Having considered the evidence before it, the Tribunal is not satisfied that the nomination against which the applicant made the relevant declaration in the visa application has been approved or that it has any prospect of being approved. On this basis, the Tribunal is not satisfied that the applicant meets the requirements in cl.187.233(3). Therefore, cl.187.233 is not met.

25. 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.

26. The secondary applicant applied for the visa on the basis of being a member of the family unit of the first named applicant. As the first named applicant does not meet a requirement for the grant of the visa, the Tribunal must also affirm the decision in respect of the secondary applicant.

    DECISION

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

    R. Skaros

    
    

    Senior 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.