Verma (Migration)

[2023] AATA 895

Verma (Migration) [2023] AATA 895 (3 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rahul Verma
Ms Shama Rani
Master Paarth Verma

REPRESENTATIVE:  Mr Mark Glazbrook (MARN: 0100185)

CASE NUMBER:  1922414

HOME AFFAIRS REFERENCE(S):          BCC2018/1250223

MEMBER:Warren Stooke AM

DATE:3 April 2023

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 3 April 2023 at 11:02am

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 15 March 2018. 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 (Cth) (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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Transport Company Manager – ANZSCO Code: 149413.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because on 4 June 2019 the nomination for PATB CORP PTY LTD was refused and that at the time of decision Mr Rahul Verma did not meet 187.233(3) and therefore did not meet 187.233.

6. On 4 June 2019 an email was sent to Mr Rahul Verma and his Migration Agent from the Department to provide the applicant with an invitation to comment on the refusal of the employer nomination within a timeframe of 28 days. At the time of the delegate’s decision, a response had not been received by Mr Rahul Verma or his Migration Agent.

7. The applicants were represented in relation to the review.

8. On 14 March 2023, the Tribunal invited the applicant to attend a hearing to review the applicant’s 187 visa decision by the Department.

9. On 20 March 2023 the Tribunal received a request from the applicant for the Tribunal to review the application on the papers.

10. On 21 March the Tribunal provided the applicant with an acknowledgement of the request for the matter to determined on the papers that included the following:

    “The Tribunal acknowledges receipt of your correspondence dated 20 March 2023. Per your request, the Tribunal will proceed to make a decision on the papers. Your hearing scheduled for 12 April 2023 has been cancelled, and we will be in touch with the outcome of your matter in due course.”

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant has an approved standard business sponsor for the nominated position.

13. The applicant was granted a Bridging Visa A on 15 March 2018 that became active at the end of the applicant’s Temporary Graduate visa on 28 November 2018 and the visa had no conditions and did not permit travel.

14. The applicant advised the Department of the birth of his son on 13 October 2018, who was advised by the Department to be included in the applicant’s 187 visa application on 10 December 2018.

15. The applicant provided evidence of completing a PTE English language test on 22 November 2016 with a score of 62.

16. The applicant stated in his application that he held a Bachelor of Technology Electronics and Communication Engineering from G.I.T. M. Bilaspur (Kurukshetra University) that he studied from 1 June 2007 to 30 June 2011.

17. The applicant provided evidence of completion of a Master of Business Administration (International Management) Federation University at IIBIT Adelaide from 17 Nov 2014 to 16 Aug 2016.

    Nomination of a position

18. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

19. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 reg 1.13A and reg 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.

20. The Tribunal has considered the material presently before the Tribunal and is satisfied that the applicant has not provided evidence that the applicant has an approved standard business sponsor for an occupation that would meet criteria cl. 187.233.

21. Therefore, cl 187.233 is not met.

    DECISION

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

    Warren Stooke AM
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.