Sharma (Migration)

[2023] AATA 3656

Sharma (Migration) [2023] AATA 3656 (9 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prateek Sharma

CASE NUMBER:  2215402

HOME AFFAIRS REFERENCE(S):          BCC2017/2827811

MEMBER:Sheridan Aster

DATE AND TIME OF

ORAL DECISION AND REASONS:         9 October 2023 at 10:14 am (VIC time)

DATE OF WRITTEN RECORD:                25 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 25 October 2023 at 9:06am

CATCHWORDS

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

LEGISLATION

Migration Act 1958
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 October 2022 to refuse to grant the visa applicant a  Regional Employer Nomination (Permanent) Subclass 187 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 9 October 2023 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. On 8 August 2017, you applied for a (Subclass 187) visa in the direct entry stream.  You were nominated by Mitha Pty Ltd to work in the occupation of café or restaurant manager. 

4. As discussed today, the application for approval of the nominated position was refused by a delegate of the Minister for Immigration on 19 July 2022.  There is no evidence before the tribunal to indicate that the company sought a review of that decision.

5. On Friday, 6 October 2023, you requested the Tribunal postpone the hearing so that you could seek new legal representation.  You advised that you were off‑shore from 16 September until 4 October and could not email your representative or the Tribunal. 

6. Departmental records confirm that you were off‑shore for that period and you submitted a change of details form and withdrew your previous authorisation for your representation. 

7. The scope of the review is limited to the question of whether the position to which the application relates is the subject of an approved nomination.  You made the current application for review on 19 October 2022. have had one year to seek legal advice on this issue.  In the circumstances, I have not granted the request to postpone the hearing and we have proceeded today.

8. The criteria for a (Subclass 187) visa is set out in Part 187 of Schedule 2 of the Migration Regulations. In the present case you sought the visa in the direct entry stream. Clause 187.233 requires 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.

9. The position to which the visa application relates must be the position into which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made, that is the declaration that the position is nominated.  The requirement cannot be satisfied by a later nomination of a position made by a different employer or a new application by the same employer.

10. In the current matter, the nomination application lodged by your prospective employer was refused by a delegate.  No subsequent nomination applications were made.  I understand that you believed the nominator was going to pursue the nomination application separately and you did not receive any update on what was done in that case.  Unfortunately, the nominator did not apply for a review and that original decision that you were notified of by the delegate remains in place.  That is, the nomination was refused.

11. You have only sought to satisfy the criteria for a (Subclass 187) visa in the direct entry stream.  No claim has been made in respect of the other visa streams.  As the requirement that must be met by a person seeking the visa in the direct entry stream has not been met, the decision under review must be affirmed. 

12. The Tribunal affirms the decision not to grant your application for a regional employer nomination visa.

    DECISION

13. The Tribunal affirms the decision under review.

    Sheridan Aster
    Member