Sood (Migration)

[2020] AATA 3467

Sood (Migration) [2020] AATA 3467 (6 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Himanshu Sood

CASE NUMBER:  1834257

HOME AFFAIRS REFERENCE(S):          BCC2017/932969

MEMBER:De-Anne Kelly

DATE:6 July 2020

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 06 July 2020 at 11:34am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – no approved nomination – nomination application withdrawn – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

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 9 March 2017. 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 a nominated position.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because on the 15 October 2018 the nomination by National Park Pty Ltd being the application referred in cl.187.233(1), was withdrawn by a delegate of the Minister for the then, Department of Immigration and Border Protection before it could be approved or refused.

6. The applicant was represented in relation to the review by his registered migration agent, Mr Vikramjeet Singh MARN: 1575086.

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 the applicant meets cl.187.233(3) which provides as follows;

   (3)      The Minister has approved the nomination.

   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. After the delegate of the Minister withdrew the employer nomination, the applicant lodged a review application of the refusal of her visa application with the Tribunal on 21 November 2018

12. The applicant included with the review application the Notification of refusal of application for an Employer Nomination and also the Notice of Decision detailing the reason for the refusal of the visa application being the withdrawal of the employer nomination application.

13. On 10 June 2020 the Tribunal sent to Mr Himanshu Sood, through his registered migration agent an invitation to attend a telephone hearing on 24 June 2020.

14. On the 19 June 2020, the Tribunal received a response to the hearing invitation in which the applicant indicated in writing that he would not be attending the hearing and that the Tribunal could make a decision on the papers without taking further steps to allow him to appear. The Tribunal believes it is reasonable to move to making a decision on this matter under s.360(2)(b) of the Migration Act.

15. Since the delegate of the Minister withdrew the employer nomination application and the applicant was aware at the time he applied for the review application that there was no possibility of his visa application being approved it is reasonable that the Tribunal make a decision without seeking further information from the applicant. It is noted that the delegate refused the employer nomination under cl.187.233(4) however the Tribunal considers that since the employer nomination application was not approved and subsequently withdrawn that this clause does not apply.  The Tribunal considers that there is no approved employer nomination application and therefore cl.187.223(3) is not met. There is no approved employer nomination to satisfy cl.187.233(3) and the visa applicant therefore does not meet cl.187.233(3).

16. 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.

    DECISION

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

    De-Anne Kelly
    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.