SHARMA (Migration)

[2017] AATA 2124

SHARMA (Migration) [2017] AATA 2124 (30 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs MOHITA SHARMA
Mr VARINDER SINGH

CASE NUMBER:  1620628

DIBP REFERENCE(S):  BCC2015/4040969

MEMBER:Stavros Georgiadis

DATE:30 October 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 30 October 2017 at 6:08pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry scheme – Café or Restaurant Manager – Nomination application refused – No valid nomination

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 5.19, Schedule 2, cl 187.233, cl 187.311

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 Immigration 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 to the Department of Immigration for the visas on 24 December 2015. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant, Mohita Sharma (the applicant), is seeking the visa in the Direct Entry stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111). 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 visas because the first named applicant did not meet cl.187.233 of Schedule 2 to the Regulations as the appointment nomination to which the visa application relates had not been approved (cl.187.233(3)). Her husband, Mr Varinder Singh, is the second named visa applicant. The delegate considered that the second named visa applicant is not a member of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and therefore did not satisfy cl.187.311.

6. The applicants appeared before the Tribunal on 30 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Harjinder Singh, who is Director of the nominating employer, TANDOORI VILLA PTY LTD.  The matter was held as a combined hearing with the related case number 1617377 regarding the nomination of the position.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicants meet the criteria for grant of the (Class RN) visas.

   Nomination of a position

10. 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.

11. 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.

12. The Tribunal has examined the visa applications on the Department file and notes that the required declaration is made in relation to the position nominated by the employer sponsor (cl.187.233(1)).

13. The Tribunal is satisfied, on the documentary and oral evidence before it, that the person who employs the applicant is the nominator in the application for approval, TANDOORI VILLA PTY LTD. Thus the first named applicant meets cl.187.233(2). The oral evidence before the Tribunal is that the position has not been subsequently withdrawn and is still available to the applicant (cl.187.233(4) and cl.187.233(5)).

14. On the oral evidence before it and the Department’s file, 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).

15. On 30 October 2017 the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19 in the related AAT case-file number 1617377 for the reasons set out in the Outcome and Decision Record for that case dated 30 October 2017, refusing the nomination. The oral outcome of the decision regarding the nomination of the position was advised to the applicants.

16. At the hearing, the Tribunal put to the applicants, in accordance with the procedure under s.359AA of the Act, that without an approved nomination, the first named applicant would not meet necessary criteria to satisfy cl.187.233 (specifically cl.187.233(3)) for the grant of the visa and that their applications would, on that basis, be unsuccessful. The Tribunal invited the applicants to comment or respond to the information that a decision had been made by the Tribunal earlier on 30 October 2017 to refuse the nomination and that this would be the reason, or part of the reason, for affirming the decision that is under review. The Tribunal also advised the applicants that they could seek additional time to comment on or respond to the information and that the Tribunal would consider adjourning the review if it considered the applicants reasonably needed additional time to comment on or respond to the information. The applicants did not require additional time and conveyed to the Tribunal that they recognised, in circumstances where the nomination was refused, that their visa applications could not be successful given approval of the nomination is one of the requirements for the grant of the visas. They wanted to know however, reasons why the nomination was refused and were advised that written reasons would be provided to the applicant employer for that nomination.

17. Having considered the available evidence before it, the Tribunal is satisfied that the position of Café or Restaurant Manager (ANZSCO 141111) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.233(3). The Tribunal finds that the nomination of the position to which the application relates is not approved.

18. Therefore, cl.187.233 is not met.

19. 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.

20. The Tribunal finds that the second named visa applicant is not a member of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and therefore does not satisfy cl.187.311.

    DECISION

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

    Stavros Georgiadis
    Member