Shrestha (Migration)

[2023] AATA 3037

Shrestha (Migration) [2023] AATA 3037 (11 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gaurav Shrestha
Ms Kripa Shrestha
Mr Aadvik Shrestha

CASE NUMBER:  1934901

HOME AFFAIRS REFERENCE(S):          BCC2019/4859573

MEMBER:Sheridan Aster

DATE:11 September 2023

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 11 September 2023 at 11:19am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Sales and Accountant (General) – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 27 September 2019. 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 Sales and Accountant (General).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, which requires that the position to which the application relates be the subject of an approved nomination.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. 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.

8. 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.

9. The applicant was invited to participate in a hearing scheduled to take place on 13 September 2023. However, on 23 August 2023, the applicant emailed the Tribunal to request that it consider a 28-day postponement for his hearing. No reason for the request was provided.

10. In response, the applicant was advised that the Tribunal will not postpone a hearing without good reason and that reason must be accompanied by evidence to support the request. The applicant was advised that the request to postpone the hearing had been denied. No further information was provided by the applicant in support of the request for the hearing to be postponed.

11. On 23 August 2023, the Tribunal invited the applicant to comment on or respond to certain information. The letter outlined that the information was relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination: cl 187.233(3) of Schedule 2 to the Regulations.

12. The information was as follows:

    ·On 27 September 2019, Futuristic IT Technologies Pty Ltd applied to the Department of Home Affairs to nominate the applicant for the position of Sales and Accountant (General).

    ·On 18 November 2019, the application for approval of the nominated position made by Futuristic IT Technologies was refused by the Department. The company applied to the Tribunal for merits review of that decision. On 25 July 2023, the Tribunal affirmed the decision not to approve the nomination. This means that the position to which the application relates is not the subject of an approved nomination.

13. It was explained that the information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse the grant of the visa.

14. The invitation advised that if the comment or response was not provided in writing by 6 September 2023 the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s views on the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

15. At the date of this decision, no response had been received from the applicant. As such, the applicant lost his entitlement to appear before the Tribunal at the scheduled hearing.

16. The nomination application made by the applicant’s nominating employer was refused by a delegate of the Minister and that decision was affirmed by the Tribunal. As such, the Tribunal finds that the position is not the subject of a nomination approved by the Minister as required by cl.186.233 (3). Therefore, cl 187.233 is not met.

17. 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.

18. As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second and third applicants do not satisfy the secondary criteria for a grant of a visa, as per cl 187.311 on the basis that they are not a member of a family unit of a person who holds a Subclass 187 visa.

    DECISION

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

    Sheridan Aster
    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.