Siwakoti (Migration)

[2019] AATA 923

Siwakoti (Migration) [2019] AATA 923 (15 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chandra Prakash Siwakoti

CASE NUMBER:  1813382

HOME AFFAIRS REFERENCE(S):           BCC2016/2267191

MEMBER:Bridget Cullen

DATE:15 March 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 15 March 2019 at 12:16pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – nomination application refused – 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 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 5 July 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 Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination lodged by PALMERIN AND VICTORIA PTY LTD ATF HORSE AND JOCKEY HOTEL MOTEL UNIT TRUST, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Home Affairs. As the appointment was refused, the delegate found that the applicant did not meet cl.187.233(3), and therefore could not meet cl.187.233.

6. The applicant appeared before the Tribunal on 29 October 2018 to give evidence and present arguments.  The hearing was conducted jointly with the review of the related nomination refusal lodged by Palmerin and Victoria Pty Ltd ATF Horse and Jockey Hotel Motel Unit Trust.  Mr Angelo Pippos, Director, also gave evidence at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether there is an approved nomination of the applicant that satisfies the requirements of cl.187.233 of the Regulations.

   Nomination of a position

9. 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.

10. 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.

11. By letter dated 12 February 2019, and in accordance with section 359A of the Act, the Tribunal invited the applicant to comment on or respond to information that it considered would be the reasons, or part of the reason, for affirming the decision under review.

    The particulars of the information are:

    ·On 11 February 2019, the Tribunal affirmed the decision to refuse the nomination lodged by Palmerin and Victoria Pty Ltd ATF Horse and Jockey Hotel Motel Unit Trust.

    ·This is the nomination referred to in Subclause 187.233(1) of the Migration

    Regulations 1994.

    This information is relevant to the review as Subclause 187.233(3), in Schedule 2 of the Migration Regulations 1994 requires that the nomination be approved. As the Tribunal affirmed the decision to refuse the nomination, it follows that you do not meet Subclause 187.233(3).

    If we rely on this information in making our decision, the Tribunal will have no choice but to affirm the decision to refuse the grant of a Regional Employer Nomination (Permanent) visa. Clause 187.233 is attached at the bottom of this letter.

12. The applicant sought an extension of time to respond to the invitation to comment, which the Tribunal granted.

13. On 13 March 2019, the applicant, though his solicitor, responded to the invitation to comment.  The submissions are not responsive, nor relevant, to the issues before the Tribunal in this review.  The Tribunal notes that the applicant’s solicitor is not a registered migration agent.  The submissions provided are relevant to the decision made by the Tribunal in affirming the decision to refuse the nomination lodged by Palmerin and Victoria Pty Ltd ATF Horse and Jockey Hotel Motel Unit Trust. The submissions seek a reversal of this decision.  The Tribunal is now functus officio in relation to that decision, and is unable to revisit that decision.  It is not the Tribunal’s role to advise applicants in relation to potential avenues for appeal. 

14. The Tribunal finds that the application for approval of a nominated position under r.5.19(4)) of the Regulations in respect of the applicant was refused by the Department and this decision was affirmed on review by the Tribunal in 11 February 2019. The applicant has produced no evidence that any appointment concerning the applicant made by Palmerin and Victoria Pty Ltd ATF Horse and Jockey Hotel Motel Unit Trust has been approved.

15. Therefore, on the evidence before it, the Tribunal is not satisfied at the time of its decision, there is a relevantly approved nominated position in relation to the applicant as required by cl.187.233(3).

16. It follows that cl.187.233 is not met.

    CONCLUSION

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.

    DECISION

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

    Bridget Cullen
    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.