Shrestha (Migration)

[2021] AATA 3939

Shrestha (Migration) [2021] AATA 3939 (30 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Manoj Shrestha
Ms Sabina Shrestha
Master Saman Shrestha

CASE NUMBER:  1837826

HOME AFFAIRS REFERENCE(S):          BCC2016/3282275

MEMBER:Andrew George

DATE:30 September 2021

PLACE OF DECISION:  Darwin

DECISION:The Tribunal affirms the decision not to grant the applicants’ Skilled Regional Sponsored (Provisional) visas.

Statement made on 30 September 2021 at 4:12pm

CATCHWORDS

MIGRATION – Skilled Regional Sponsored (Provisional) (Class GK) visa – Subclass 489 Skilled - Regional (Provisional) – no approved nominated – nominating state or territory withdrew nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 489.225, 489.311

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 Home Affairs on 20 December 2018 to refuse to grant the visa applicant a Skilled Regional Sponsored (Provisional) Subclass 489 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) applied for the visa on 4 October 2016. The delegate refused to grant the visa on the basis that cl.489.225 was not met. The delegate found:[1]

   “As I am satisfied that your nominating state or territory has withdrawn your nomination, the requirements of subclause 489.225(2) are not met.

   Subclause 489.225(3) requires that an applicant for a subclass 489 visa must have had a sponsorship accepted by the Minister. You have provided no evidence that the Minister has accepted such a sponsorship and therefore the requirements of subclause 489.225(3) are not met.”

   [1] Decision Record/3.

3. The applicant appeared before the Tribunal on 30 September 2021 to give evidence and present arguments. The second named applicant attended the hearing but was not called upon to give evidence. An interpreter of the Nepali and English languages attended by telephone but was not relied upon.

4. The applicant was candid in his evidence that the Northern Territory Government had withdrawn their nomination of his visa and that he had subsequently been unable to obtain alternative sponsorship. The Tribunal accepts this evidence.

5. The applicant has resided in Australia since 2009 and has completed an undergraduate degree in accounting here. The applicant has a sense of having been wronged by the Northern Territory Government as the visa nomination seems to have been perfunctorily withdrawn. This may be so, but it is beyond the scope of the present review to inquire into the reasons why the visa nomination was withdrawn. The applicant has subsequently sought a bona fide nomination, rather than anything lesser, but has been unsuccessful. The Tribunal accepts this evidence and has considered the applicants’ predicament.

6. This is a technical legal matter where the Tribunal is devoid of discretion. Clauses 489.225(2) and 489.225(3) cannot be met in circumstances where a nomination has been withdrawn and no further nomination has been accepted. The Tribunal is satisfied of as much. The Tribunal has also considered the secondary criteria contained in cl.489.311, but there is no evidence before it that this has been met by the applicant. Accordingly, the decision under review must be affirmed.

   DECISION

7. The Tribunal affirms the decision not to grant the applicants’ Skilled Regional Sponsored (Provisional) visas.

   Andrew George
   Member