Sunil (Migration)

[2018] AATA 2605

Sunil (Migration) [2018] AATA 2605 (14 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sunil
Ms Khwahish Toor
Mrs Kavita Kumari 

CASE NUMBER:  1614055

DIBP REFERENCE(S):  BCC2015/3369025

MEMBER:Ian Berry

DATE:14 June 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 14 June 2018 at 10:10am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct entry scheme – Nominated position – Customer Service Manager – No nomination approval – Secondary applicants – Members of the same family unit – Practice and procedure – No entitlement to a hearing – Comments provided by the applicant within the prescribed period Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65, 359, 360, 359C, 363A

Migration Regulations 1994 (Cth), r 5.19 Schedule 2 cl 187.233

CASES

Hasran v MIAC [2010] FCAFC 40

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 Immigration to refuse to grant the applicant (Mr Sunil) a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Sunil applied for the visa on 16 November 2015. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, Mr Sunil is seeking the visa in the Direct Entry stream, to work in the nominated position of Customer Service Manager. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, as the employer nomination for the position made by the nominator concerning Mr Sunil was not approved.

6. Mr Sunil provided a copy of the delegate’s decision record to the Tribunal.

7. The nominator applied for review of the decision to refuse its nomination.  A decision in respect of that review was made by the Tribunal on 24 November 2017, the outcome of which was to affirm the Department of Immigration’s decision not to approve the nomination.

8. On 27 February 2018, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide information in writing demonstrating Mr Sunil met all the requirements of the criteria in cl.187 of Schedule 2 of the Regulations at the time of the Tribunal’s decision.

9. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 13 March 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. Mr Sunil did not provide the information within the prescribed period and no extension has been granted. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) Mr Sunil is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40.

11. Though Mr Sunil had lost the right to a hearing, on 5 June 2018 the Tribunal again wrote to Mr Sunil pursuant to s.359 of the Act, inviting him to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. Information before the Tribunal indicates Mr Sunil was not the subject of nominator’s application which had been approved.

12. This information may be relevant to the Tribunal affirming the application under review as Mr Sunil may not have an approved nomination which would be necessary for his application to be approved. 

13. Mr Sunil did provide comments within the prescribed period, stating ‘my employer is not willing to provide any further documents and result (sic) AAT refused the application’. Mr Sunil may have been referring to the Tribunal’s decision of 24 November 2017 which affirmed the Department’s decision to refuse the nominator’s nomination application.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the review applicant meets the requirement in cl. 187.233(3). In summary, does Mr Sunil have a nominator whose nomination application, relevant to Mr Sunil, was approved?

2. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, cl.187.233(3) requires that the nomination has been approved.

3. Clause 187.233 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.

4. Mr Sunil’s nominator made an application for review of a decision made by a delegate of the Minister on 30 June 2016 to refuse to approve the nominator’s nomination under s.140GBA of the Act and r.2.72 of the Regulations.

5. On 24 November 2017, the Tribunal affirmed the delegate’s decision not to approve the nomination.

6. As the relevant nomination has not been approved, the Tribunal finds that the requirement in cl.187.233(3) is not met. Therefore, cl.187.233 is not met.

7. 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.

8. In respect of the secondary applicants, (Mrs Kavita Kumari and Ms Khwahish Toor), the Tribunal notes that there is no information before it to suggest that the secondary applicants meet the primary criteria for the grant of the visa.  The secondary applicants applied for the visa on the basis of being a member of the family unit of the review applicant.  As the Tribunal has found that Mr Sunil does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of Mrs Kavita Kumari and Ms Khwahish Toor, as they are not members of the family unit of a person who satisfies the primary criteria for the visa.

DECISION

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

Ian Berry
Member