Tripathi (Migration)

[2018] AATA 3545

Tripathi (Migration) [2018] AATA 3545 (15 August 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Pranav Girishkumar Tripathi

CASE NUMBER:  1726315

DIBP REFERENCE(S):  BCC2017/1918159

MEMBER:  Warren Stooke AM

DATE:  15 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 15 August 2018 at 3:36pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 5.19(3), 5.19(4), Schedule 2, cl 187.233(3)

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 and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 30 May 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

1. 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.

1. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager [ANZSCO 1421111]. 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.

1. The delegate refused to grant the visa because the applicant did not meet cl.187.233,

   187.223 and 187.242 of Schedule 2 to the Regulations because the delegate found that the nominated position had not been approved under subregulation 5.19(3) and since the correlating nomination did not seek to meet the requirements of and was not assessed under subregulation 5.19(3), the applicant does not meet clause 187.223.

1. On 13 June 2018, the applicant was invited to comment or respond to information pertaining to his application by 27 June 2018. The information provided to the applicant was the decision of the Tribunal relating to the Trustee for Akshar Family Trust Tribunal Case 1721699.

1. The applicant, after seeking an extension of time to respond, which was granted by the Tribunal on 26 June 2018 for a response by 10 July 2018, responded to the Tribunal on 10 July 2018. The response provided a volume of information pertaining to the request, which included the following:

a.Response to AAT - Invitation to Comment on or Respond to Information

b.Certificate III in Food Processing Cake and Pastry

c.Diploma of Management

d.Advanced Diploma of Marketing

e.Diploma of Hospitality

f.IELTS Test Result

g.Resume

h.Form 80

1. Form 80 signed page

j.Australian Police Certificate

k.Request to DIBP to hold Visa Application

l.Direct Entry Stream nomination requirements — RSMS (subclass 187)

m.Skill Vacancy Statement — genuine need of a paid employee

n.Skill Vacancy Statement (signed)

1. The applicant included in his correspondence response, the following statement:

“Could you please review the entire matter with a full perspective and do the needful to correct the past mistakes by approving the nomination and my visa application only in accordance with migration law rather than discretionary ad-hoc decision making.”

1. The applicant appeared before the Tribunal on 15 August 2018 to give evidence and present arguments and evidence was provided by Mr. Vaidya, who is the applicant’s cousin.

1. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

1. At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate’s decision of 6 October 2017, which had also been forwarded to him by the nomination sponsor.

1. 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 applicant has an approved nominating sponsor and position in which to be engaged in employment.

1. In the hearing the applicant expressed views about the Tribunal’s decision relating to Trustee for Akshar Family Trust [Tribunal Case 1721699] and the Tribunal responded that the Tribunal was functus officio regarding the determination in that case and that the matter currently before the Tribunal was whether the applicant had an approved nominating sponsor.

1. The applicant stated that it was – “Decided by the sponsor not to go to the Federal Court”

1. The applicant stated that he had been in Australia since 2006 and had invested thousands of dollars on his education and had paid taxes. He said that he had only returned to India for 34 days in the 12 years he had been in Australia which was indicative of his commitment to this country. He stated that he can’t apply for any sponsorship visa.

1. The applicant presented evidence that he had been the victim of an agent’s negligence following the non-submission of material to the department that the nominated sponsor and himself had provided for that purpose. This, he stated, had caused his visa application to be rejected by the department.

1. The applicant asked the Tribunal to consider his application and to support the visa. The Tribunal reiterated that the Tribunal would make the decision on the basis of the evidence before the Tribunal and that the application required an approved nominating sponsor.

1. The Tribunal confirmed with the applicant that he was making a formal request for a reference under s351 of the Migration Act 1958 to the Minister for consideration.

Evidence of Mr Vaidya

1. The witness provided evidence that the applicant had been in Australia for 12 years and had been the victim of professional negligence by the migration agent. He stated that the applicant is a genuine applicant but the outcome is negative.

1. The witness stated that the applicant was a victim of circumstances and that the applicant had given his youth to Australia. He stated that the applicant was so committed that he had only spent a couple of months outside of Australia.

Nomination of a position

1. 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, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

1. 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.

1. The Tribunal has carefully reviewed the material provided by the applicant, in response to the invitation to comment or respond to information pertaining to his application and notes that the substantive material provided by the applicant pertains to the skill and qualifications of the applicant and an argument as to the status of the intended position of employment.

1. The material matter for the Tribunal to determine is whether the applicant has an approved nominating sponsored and position, which given the decision of the Tribunal in Case relating to the Trustee for Akshar Family Trust [Tribunal Case 1721699], the applicant does not have an approved nominating sponsor and position.

1. Given that the Tribunal has determined there is no approved nominated sponsor for the position, with which the applicant can be engaged, that meets the requirements of cl.187.233, then, cl.187.233 is not met.

1. 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

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

Ministerial Reference

The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicant's case and the ministerial guidelines relating to the discretionary power set out in the Department's Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

Warren Stooke AM Member