Sihag (Migration)

[2019] AATA 2936

Sihag (Migration) [2019] AATA 2936 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hanuman Sihag

CASE NUMBER:  1806774

HOME AFFAIRS REFERENCE(S):           BCC2016/3289155

MEMBER:Stavros Georgiadis

DATE:25 March 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 25 March 2019 at 3:31pm

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

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233, rr 1.13, 5.19

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 4 October 2016. 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (General) ANZSCO 142111.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations as the delegate found there was no approved nomination for the occupation of Retail Manager (General) ANZSCO 142111 in respect of the applicant [cl.187.233(3)].

6. The applicant appeared before the Tribunal on 25 March 2019 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his 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 applicant meets the requirements for a Subclass 187 visa which requires (inter alia) approval of the nomination of the specified occupation under the Direct Entry nomination stream for the purposes of r.5.19(4).

   Nomination of a position

10. 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.

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 considered the visa application on the Department file and notes that the required declaration has been made in relation to the position nominated by the employer sponsor (cl.187.233(1)).

13. The Tribunal is satisfied, from the documentary and oral evidence before it, that the person who will employ the applicant is the nominator in the application for approval, M & N Furtado Pty Ltd, trading as Salisbury Pizza Capri - (cl.187.233(2)).

14. At the hearing the Tribunal put to the applicant, in accordance with the procedure under s.359AA of the Act, that without an approved nomination he would not meet necessary criteria to satisfy cl.187.233 (specifically cl.187.233(3)) for the grant of the visa and that the application would, on the basis of a decision made by the Department on 23 January 2018 refusing the nomination, be unsuccessful. 

15. The Tribunal invited the applicant to comment on, or respond to, the information that because of the decision of 23 January 2018 refusing the nomination, this would be the reason or part of the reason, for affirming the decision that is under review.  The Tribunal also advised the applicant that he 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 applicant reasonably needed additional time to comment on, or respond to, the information. 

16. There was no additional time requested to comment or respond. The applicant conveyed to the Tribunal that he understands and accepts that in circumstances where there is no nomination approval, his visa application could not be successful as approval of the nomination is one of the requirements for the grant of the visa.  The applicant’s oral evidence is that in mid-2018 he was advised that his nominating employer had withdrawn the nomination. The Tribunal accepts this oral evidence.  The Tribunal finds that on 23 January 2018 the delegate refused the nomination of the position by M & N Furtado Pty Ltd.  Although this had been the subject of an appeal to the Tribunal, the employer did not proceed with the appeal to the nomination refusal decision and on 7 May 2018, withdrew the application for review of that decision. 

17. Having considered the available evidence before it, the Tribunal is satisfied that the nominated position 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 and also that the nomination has been withdrawn.  

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.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Stavros Georgiadis
    Member

    
    

    ATTACHMENT A

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

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; 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.