Vikas (Migration)

[2019] AATA 4720

Vikas (Migration) [2019] AATA 4720 (11 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vikas

CASE NUMBER:  1910250

HOME AFFAIRS REFERENCE(S):           BCC2018/790962

MEMBER:Katie Malyon

DATE:11 July 2019

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 11 July 2019 at 3:05 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – employer’s nomination application withdrawn – no response to Tribunal’s communication – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 363(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
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 Vikas, a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Vikas applied for the visa on 18 February 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 (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.

4. In the present case, Mr Vikas 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 on the basis Mr Vikas did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application made by his prospective employer was withdrawn from the Department before a decision was made on the nomination. A copy of the delegate’s decision was provided to the Tribunal.

   Background  

6. Mr Vikas was nominated to fill the position of Cook by his prospective employer, Yogis Traders Pty Ltd (the Company).  The Company withdrew its nomination application on 10 August 2018 and, as a result, the Department refused Mr Vikas’ Subclass 187 visa application. 

7. The Tribunal wrote to Mr Vikas on 3 May 2019.  In its letter, the Tribunal stated that it is a requirement for grant of a Subclass 187 visa that the nomination for the position identified in his visa application has been approved.  The Tribunal noted that information before it suggests that the nomination for the position identified in his visa application was withdrawn on 10 August 2018 and, if the nomination was withdrawn, the decision to refuse to grant him a Subclass 187 visa must be affirmed by the Tribunal.  It also noted that lodging a new nomination application will not enable him to meet criteria for grant of the visa. 

8. The Tribunal invited Mr Vikas to provide information in relation to whether the position identified in his visa application is the subject of an approved nomination, or whether there is a pending application for review of a decision to review the nomination.  Mr Vikas was requested to provide any evidence in response to the Tribunal’s letter by 17 May 2019.  No response was received from Mr Vikas.

   Hearing

9. On 21 June 2019, the Tribunal invited Mr Vikas to attend a hearing on 9 July 2019 at

   
   

   10:30 am to give evidence and present arguments.  The invitation requested he provide the Tribunal, prior to the hearing, with any documentation on which he intends to rely to establish that he meets criteria for grant of the visa.  No information was provided in response to the Tribunal’s hearing invitation.  

10. Mr Vikas did not attend the scheduled hearing.  The Tribunal is satisfied that its hearing invitation letter was sent to the email address nominated by Mr Vikas for communications with him and, further, that 2 SMS messages were sent to his nominated mobile number - on 2 July 2019 at 11:08 am and 8 July 2019 at 11:03 am respectively - to remind him of the hearing on 9 July 2019.

11. The Tribunal did not receive any request for an adjournment of the hearing, or any reasons from Mr Vikas for his non-attendance.  To date, no further communication from him has been received.

12. The Tribunal has considered whether it should adjourn the review under s.363(1)(b) of the Act to allow Mr Vikas additional time in which to provide further evidence to support his review application. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

13. In the circumstances of this case, the Tribunal has considered that Mr Vikas: was notified of the hearing date via email to his nominated address as well as in 2 SMS messages to his mobile number; and, further, he did not attend the hearing or seek to have the hearing date rescheduled. In addition, the Tribunal has considered whether evidence that Mr Vikas meets the requirements of cl.187.233 of Schedule 2 to the Regulations is likely to be forthcoming.

14. In these circumstances, and for the reasons set out in this decision, the Tribunal considers that Mr Vikas has had a fair opportunity to provide relevant information to the Tribunal. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

16. 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 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 same one that was the subject of the Declaration made by the visa applicant that is required to be made as part of a valid Subclass 187 visa application: paragraph 1114C(3)(d) of Schedule 1 to the Regulations.

17. 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.

18. Mr Vikas applied for a Subclass 187 visa on the basis of being nominated by the Company. As noted above, the nomination application made by the Company in respect of his visa was withdrawn from the Department on 10 August 2018. As a result, the position to which Mr Vikas’ Subclass 187 visa application relates cannot meet criteria in cl.187.233 of Schedule 2 to the Regulations because there is no approved nomination by the Company in respect of him and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a 'once off' process.[1] The Court observed that even a new nomination in respect of the same position made by the same employer could also not be relied upon to meet these Schedule 2 criteria because the new nomination would not be the one in relation to which the visa applicant had made the Declaration in their visa application.

    [1] Singh v MIBP [2017] FCAFC 105, Mortimer J at [90]

19. In the circumstances, as the nomination application made by the Company for the position of Cook to which Mr Vikas’ 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. Therefore, cl.187.233 of Schedule 2 to the Regulations is not met.

20. Mr Vikas 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, the Temporary Residence Transition 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.

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from Schedule 2 to the Migration Regulations 1994

    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.

    oOOo