Trishna (Migration)

[2019] AATA 3025

Trishna (Migration) [2019] AATA 3025 (7 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nahid Khanom Trishna

CASE NUMBER:  1701789

HOME AFFAIRS REFERENCE(S):          BCC2016/1062561

MEMBER:Karen McNamara

DATE:7 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 07 May 2019 at 9:12am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook (ANZSCO 351411) – nomination refused – tribunal affirmed refusal decision – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(A)
Migration Regulations 1994, 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 Immigration and Border Protection on 1 February 2017 to refuse to grant Miss Nahid Khanom Trishna (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 11 March 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 on 2 February 2016, the nomination lodged by TST Regal Pty Ltd T/A Palki Restaurant, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Immigration and Border Protection.

6. The applicant applied to the Tribunal on 2 February 2017 for review of the delegate’s decision.

7. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant satisfies cl.187. 233.

   Nomination of a position

10. 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.

11. 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.

12. On 23 April 2019, the Tribunal affirmed the decision refusing the approval of the nomination made by TST Regal Pty Ltd (AAT file 1622037).

13. On 24 April 2019, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review.  The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by TST Regal Pty Ltd, which the Tribunal explained was relevant to them meeting cl.187.233(3), which requires the nomination to be approved.  As the nomination has been refused, regulation cl.187.233(3) is not met.

14. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 8 May 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

15. On the 2 May 2019 the Tribunal received via email the following advice from the applicant’s Migration Agent;

    “ In response to your invitation to comment on no approved nomination made by the nominating employer, TST Regal Pty Ltd, we would request AAT to proceed with the decision.

    We understand that AAT would affirm the decision made by Department of Home Affairs.”

16. Having considered the evidence before it, the Tribunal finds that the primary applicant does not satisfy cl.187.233(3). 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.

    Karen McNamara
    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.