TRIKHA (Migration)

[2020] AATA 1181

TRIKHA (Migration) [2020] AATA 1181 (22 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shubham Trikha

CASE NUMBER:  1820022

HOME AFFAIRS REFERENCE(S):          BCC2016/3121133

MEMBER:Katie Malyon

DATE:22 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 22 April 2020 at 4:56 pm

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

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Singh v MIBP [2017] FCAFC 105

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, Indian national Mr Shubham Trikha, a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Trikha applied for the visa on 20 September 2016.  At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. Criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  Applicants seeking to satisfy the primary criteria must meet the 'Common criteria' as well as the criteria of one of 2 alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.

   Background

4. In the present case, Mr Trikha is seeking the visa in Direct Entry stream to continue working in the nominated position of Cook ANZSCO 351411 for Tandoori Fish Pty Ltd (the Company).

5. The delegate refused to grant the visa on the basis Mr Trikha did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application made by the Company was refused by the Department. A copy of the delegate’s decision refusing his Subclass 187 visa application was provided by Mr Trikha to the Tribunal.

6. On 31 March 2020, the Tribunal wrote to Mr Trikha pursuant to s.359A of the Act inviting him to comment on, or respond to, information which would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse his Subclass 187 visa application. The Tribunal informed Mr Trikha that information before the Tribunal indicated the Company had been deregistered by ASIC on 14 July 2019. Consequently, on 6 December 2019, the Tribunal (differently constituted) found that it had no jurisdiction in relation to the application for review of the nomination and, as such, there is currently no approved nomination by the Company in respect of him. As a result, the position to which his Subclass 187 visa application relates cannot meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

7. Mr Trikha responded to the Tribunal’s s.359A letter on 12 April 2020. In his response, Mr Trikha provided details of his employment with the Company since 6 April 2016. He submits that, after his visa was refused by the Department, the Company told him they could not keep the restaurant running any longer as they were not getting much profit. At first, he was shocked but then he tried to get another job at an Indian restaurant and looked locally for the job. After a few months, he was offered the position of Cook with Spice N Aroma in Grenfell, about 50 km from Young.  He has been working there since December 2018.  In conclusion, Mr Trikha requested the Tribunal give him a chance so that he can apply for another work visa.

   Hearing

8. Mr Trikha appeared before the Tribunal by way of teleconference on 15 April 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether Mr Trinka meets the requirements of cl.187.233 of Schedule 2 to Regulations.

    Nomination of a position

11. Clause 187.233 of Schedule 2 to the Regulations as applicable in this case is set out in full in the Attachment to this decision.  Essentially, it requires that the position to which the application relates must 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.  Further, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

12. 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 (emphasis added);

    ·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 of the Regulations 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.

13. The Company’s nomination application was refused from the Department on 15 May 2018. In the circumstances, as the nomination application made by the Company for the position of Cook to which Mr Trikha Subclass 187 visa application relates has not been approved, it follows that he does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.[1] Therefore, cl.187.233 of Schedule 2 to the Regulations is not met.

    [1] Mortimer J at [90]

14. Mr Trikha 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 stream.  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.

    Is this an appropriate case to refer to the Minister?

15. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal a decision that is more favourable to the applicant if the Minister thinks it is in the public interest to do so. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for his consideration under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally.

16. No documentation has been provided to the Tribunal to enable it to make an assessment as to whether this is an appropriate case to refer to the Minister consistent with the guidelines published by the Minister in PAM3 Minister's guidelines on ministerial powers (s351, s417 and s501J of the Act).[2]  In the circumstances, if Mr Trikha and the owners of Spice N Aroma wish to seek ministerial intervention, it is open to them to provide a submission and evidence to the Minister for his consideration.

    [2] >

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

    Katie Malyon

    
    Member

    ATTACHMENT - Extract from the Migration Regulations 1994

    Schedule 2

    ..

    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.

    oOOo