Sharma (Migration)

[2023] AATA 1738

Sharma (Migration) [2023] AATA 1738 (10 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Priti Sharma
Mr Rahul Sharma
Mr Ahaan Sharma
Miss Rubaina Sharma

REPRESENTATIVE:  Mr Rohit Sharma (MARN 1797395)

CASE NUMBER:  1924079

HOME AFFAIRS REFERENCE(S):          BCC2018/5086077

MEMBER:Terrence Baxter

DATE:10 May 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 10 May 2023 at 8:36am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Restaurant Manager – subject of an approved nomination – request for deferral of decision declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 363
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233, 187.311

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 (Cth) (the Act).

2. The applicants applied for the visas on 15 November 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Restaurant Manager for Desi Hut Pty Ltd (the nominator).

5. The delegate refused to grant the visas on 15 August 2019 because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 3 July 2019 and that accordingly the applicant did not satisfy cl 187.233(3) and did not meet cl 187.233 as a whole as required.

6. The delegate also found that the second named, third named and fourth named applicants could not be granted Subclass 187 visas, as they did not meet the secondary visa criterion (cl 187.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 28 August 2019.

8. The first named and second named applicants appeared before the Tribunal by video conference on 3 May 2023 to give evidence and present arguments.

9. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.

10. The applicants were represented in relation to the review by their registered migration agent Mr Rohit Sharma from 10 April 2023. The representative attended the Tribunal hearing by video conference.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

13. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it 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. 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.

14. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

15. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the position of Restaurant Manager approved, with the applicant as nominee, on 16 October 2018. The nomination application was refused on 3 July 2019 and the nominator sought review of that decision with the Tribunal on 22 July 2019.

16. On 24 March 2023, the Tribunal (as presently constituted) affirmed the decision to refuse the nomination.

17. On 28 March 2023, the Tribunal wrote to the applicants pursuant to s 359A of the Act inviting them to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 24 March 2023, the Tribunal affirmed the decision not to grant an Employer Nomination lodged by Desi Hut Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl. 187.233(1).

    If we rely on this information in making our decision, we may find that Ms Priti Sharma does not meet 187.233(3), which requires the nomination be approved, and affirm the decision under review.

    We may subsequently find that Mr Rahul Sharma, Miss Rubaina Sharma and Mr Ahaan Sharma do not meet the secondary visa criteria, cl 187.311, which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of a visa and who holds a Subclass 187 visa and affirm the decision under review in respect of their applications.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 11 April 2023.

18. The representative responded to the Tribunal’s invitation on 11 April 2023.

19. Prior to the hearing on 3 May 2023, the applicants provided to the Tribunal the following documents:

    a.    A copy of the decision to refuse the related nomination application dated 3 July 2019.

    b.    A copy of the delegate’s decision dated 15 August 2019.

    c.     A copy of the Tribunal’s decision to affirm the refusal of the nomination application dated 24 March 2023.

    d.    A submission from the representative dated 26 August 2021 but received by the Tribunal on 2 May 2023.

    e.    Evidence that the nominator applied to the Federal Circuit and Family Court of Australia on 28 April 2023 for review of the Tribunal’s decision to affirm the refusal of the nomination application.

    f.   Correspondence from and a Form 1404 issued by the Chamber of Commerce and Industry Queensland to the nominator dated 15 September 2020.

20. In his submission to the Tribunal received shortly prior to the hearing, the representative:

    a.    Submitted that the Tribunal had not considered factual circumstances in reaching its decision to affirm the refusal of the nomination application on 24 March 2023.

    b.    Requested on behalf of the applicants that the Tribunal delay its decision in this matter until the judicial review of the decision to affirm the refusal of the nomination application had been completed.

21. At the hearing, the applicant stated that she had been working diligently for the nominator for over three years and that she was not aware of the reason for refusal of the nomination application. She said that her employer had told her that he had complied with all relevant requirements. She said that a decision to affirm the refusal of the visa application would cause significant difficulties for herself and her children. The second named applicant gave similar evidence, stating that the applicant had worked very hard for the nominator and that they did not understand why the applications had been refused.

22. The representative submitted that, while he acknowledged that the Tribunal was bound to apply the relevant legislation, from the applicant’s perspective a decision to affirm the refusal of the visa application would cause difficulties for the applicants. He renewed the request that the Tribunal delay its decision until the nominator’s application for judicial review had been completed.

23. The Tribunal notified the applicants that its decision to affirm the refusal of the nomination application had been made on 24 March 2023 and that it was not appropriate to enter into a discussion regarding that decision at this time.

24. The Tribunal has considered whether it would be appropriate to adjourn this application for review under s 363(1)(b) of the Act until the judicial review of the Tribunal’s decision to affirm the refusal of the nomination application had been completed. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process. The Tribunal also considers that any such adjournment would be for an undefined period of time which is likely to be extensive. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is, amongst other things, quick.

25. In these circumstances, the Tribunal has decided that this application should not be adjourned.

26. The Tribunal does have sympathy for the applicants in this matter. The Tribunal accepts that the applicant is a hardworking employee of the nominator. The Tribunal also notes that the reason for the Tribunal’s decision to affirm the refusal of the visa application is in no way related to any actions on the part of the applicants. However, the Tribunal’s decision is based on the requirements of cl 187.233 and cl 187.311.

27. The Tribunal notes that the application for nomination for the position of Restaurant Manager has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application. Accordingly, cl 187.233(3) is not met.

28. Therefore, cl 187.233 is not met in respect of the applicant.

29. 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.

30. In relation to the second named, third named and fourth named applicants, the Tribunal notes that cl 187.311 of Schedule 2 to the Regulations requires that a secondary visa applicant be a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 187 visa and is not the holder of a Subclass 187 visa, it follows that the second named, third named and fourth named applicants do not satisfy the requirements of cl 187.311. The Tribunal finds accordingly.

    DECISION

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

    Terrence Baxter
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.