Sharma (Migration)

[2021] AATA 2220

Sharma (Migration) [2021] AATA 2220 (24 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kapila Sharma
Mr Abhimanyu Sharma

CASE NUMBER:  2100778

HOME AFFAIRS REFERENCE(S):          BCC2018/3825927

MEMBER:Mark Bishop

DATE:24 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 24 May 2021 at 12:10pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – applicant failed to provide the requested information –no approved nomination – not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Yang v MIAC [2-010] FMCA 890

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 19 June 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.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because on 17 August 2018 the nomination lodged by TGM INVESTMENTS (VIC) PTY LTD being the nomination referred to in paragraph 187.233, was refused by a delegate of the Minister for Immigration and Border Protection.

6. In this case the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the review applicant to provide further information to the Tribunal.

7. The Tribunal did not receive any response to the before mentioned written invitation. That is the review applicant has not provided the Tribunal with any further information than that which was provided to the Department.

8. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under s.359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being an address provided by the review applicant in connection with this application for review.

9. As the applicant failed to respond within the prescribed period, s.359C(1) applies and pursuant to s.360(3), the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear see Hasran v MIAC [2010] FCAFC 40 at [26]; Yang v MIAC [2-010] FMCA 890 at [40].

10. The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.

11. The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in 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 have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li [2013] HCA18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC (4 February 2014) which considered analogous issues, as well as the recent decision of Kaur v Minister for Immigration and Border Protection [2014 FCA 915 (28 August 2014).

12. The Tribunal wrote to the applicant on 6 May 2021 seeking information under s.359(2) of the Act. The applicant did not respond to this request for information. In view of the compressed time frame the Tribunal is of the view the applicant has had the most recent possible opportunity to provide relevant information. The Tribunal has provided full particulars to the applicant within three weeks of date of decision. The application for review a is a futile application for review. See paragraphs 20 and 21 below.

13. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.

14. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.

15. Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is the lack of a nomination because the nomination lodged by the nominator was refused.

    Nomination of a position

18. 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 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.

19. On 6 May 2021 the Tribunal wrote to the applicant in the following terms:

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·You applied for the Subclass 187 (Regional Sponsored Migration Scheme) visa based on a nomination of a position made by the nominator, TGM INVESTMENTS (VIC) PTY LTD. The nomination to which that position relates was refused by the Department of Home Affairs (‘the Department’) on 12 October 2020.

    ·It is a requirement for the grant of a Subclass 187 visa that the nomination has been approved and that the nomination has not subsequently been withdrawn (cl 187.233).

    ·The nominator did not seek review of that decision with the AAT is no approved nomination, and no review of that nomination refusal decision pending, that concern you.

    ·This means the Department’s decision refusing the nomination in relation to you stands and therefore, the relevant nomination for the position has not been approved.

    This information is relevant to the review because one of the requirements for the grant of the Subclass 187 visa is that the relevant nomination, that is the nomination you relied on when lodging your visa application, has not been approved.

    If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy cl.187.233 of the Migration Regulations (the Regulations) and that we must affirm the decision that is under review.

20. The applicant did not respond to this request for information. The applicant did not provide any information to the Tribunal. The applicant did not address the particulars set out in paragraph 19 above.

21. On 12 October 2020 the nomination lodged by TGM INVESTMENTS (VIC) PTY LTD being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Immigration and Border Protection.

22. There is no evidence before the Tribunal that the relevant nomination has been approved. The evidence before the Tribunal is that the prior nomination was refused and therefore that the applicant is not the subject of an approved nomination and does not meet the requirements of cl 187.233.

23. Therefore, cl.187.233 is not met.

    Secondary Applicant Mr Abhimanyu Sharma  

24. The applicant applied for an Employer Nomination Scheme (subclass 186) visa.

25. On the basis of all of the information available to the Tribunal, including the documents and information the applicant provided, the Tribunal finds that the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa have not been satisfied by the applicant.

26. The Tribunal has assessed the application and the reasons for decision are detailed below.

27. An application for an Employer Nomination Scheme (subclass 186) visa has been made by the applicant.

28. A visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied.

29. In this review application the Tribunal is not satisfied that clause 186.311 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that:

    186.311

    The applicant:

    (a)       is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b)       made a combined application with the primary applicant.

30. As the applicant is not a member of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa, clause 186.311 is not satisfied.

31. The dependent applicant, Mr Abhimanyu Sharma included in this application has not made any claim towards satisfying this class of visa other than as a claimed member of Mrs Kapila Sharma’s family unit for the purpose of this application.

32. Since Mrs Kapila Sharma is unable to meet Subregulation 186.233, the dependent applicant Mr Abhimanyu Sharma  is unable to meet criteria 186.311(a).

    Decision

33. As clause 186.311 is not satisfied, the Tribunal finds the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa are not satisfied. Therefore, the Tribunal refuses the application by the applicant an Employer Nomination Scheme (subclass 186) visa

    CONCLUDING PARAGRAPH (ALL ISSUES)

34. 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

35. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Mark Bishop

    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.