Tyagi (Migration)

[2018] AATA 2860

Tyagi (Migration) [2018] AATA 2860 (28 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vibhor Tyagi
Mrs Harpreet Kaur

CASE NUMBER:  1804685

DIBP REFERENCE(S):  BCC2015/4120438

MEMBER:Mary Sheargold

DATE:28 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 28 June 2018 at 8:28am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nominated position of Café or Restaurant Manager – No approved nomination – Decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, rr 1.13A, 1.13B, 5.19, cls 187.311(a), 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 31 December 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, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Café or Restaurant 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. On 7 February 2018, the delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no approved nomination.

6. The Tribunal received a review application from the applicants on 22 February 2018, and included a copy of the Departmental decision record with their application.  No further documents or submissions were received.

7. The applicant appeared before the Tribunal on 7 June 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether there is an approved nomination.

   Nomination of a position

10. 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).

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. At the hearing, the applicant gave evidence that he had worked for Guraya Group Pty Ltd (Guraya Group) while he was holding a Subclass 457 visa.  He told the Tribunal that in December 2015, Guraya Group lodged the nomination application and this visa application.  The applicant gave evidence that when his Subclass 457 visa expired, he was advised by Guraya Group to cease his employment with it until the visa application (the subject of this review) was approved.

13. The applicant gave evidence that he was contacted by a director of Guraya Group in November 2017 and advised that the Department was “forcing” it to withdraw its nomination for the applicant’s visa, and that the director also asked the applicant not to answer any telephone calls from unidentified numbers in case it was the Department seeking to question him.  The applicant stated that he had not otherwise been in contact with Guraya Group since June 2017, and that he had also complained about Guraya Group’s conduct to the Australian Taxation Office as he had not been paid his superannuation entitlements for approximately 18 months.  The applicant told the Tribunal that in his correspondence with the ATO, he learned that the director of Guraya Group was bankrupt.  The applicant told the Tribunal that he believes Guraya Group’s business is no longer operating.

14. The Departmental decision record notes that on 29 September 2017, Guraya Group withdrew its nomination. Therefore, the Tribunal finds that the applicant cannot satisfy cl.187.233 of Schedule 2 of the Regulations because the position specified in the visa application is not the subject of an approved nomination.

15. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

16. In this matter, the Tribunal notes that because there is no approved nomination for the primary applicant’s visa application, he cannot overcome his current inability to meet cl.187.233 in relation to his application.  The nomination by Guraya Group was specifically linked to his visa application, and that nomination was not, and now cannot be, approved.

17. Therefore, cl.187.233 is not met.

18. 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.

19. Further, because the applicant is unable to satisfy cl.187.233, the secondary applicant is unable to satisfy cl.187.311(a) because she is not the member of a family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.  Therefore, the decision under review in relation to the secondary applicant must be affirmed.

    DECISION

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

    Mary Sheargold
    Member