Abraham (Migration)

[2020] AATA 5344

Abraham (Migration) [2020] AATA 5344 (18 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Delma Abraham
Mr Amal Joseph

CASE NUMBER:  1924616

HOME AFFAIRS REFERENCE(S):          BCC2017/1521474

MEMBER:Phoebe Dunn

DATE:18 December 2020

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 18 December 2020 at 4:16pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café/Restaurant Manager – subject of an approved nomination – nominating business deregistered – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

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 27 April 2017. 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Café/Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the related nomination application by Ross River Spices Pty Ltd (the nominator), being the nomination referred to in cl.187.233(1) (the nomination,) was refused by a delegate of the Minister on 17 July 2019 and as such there was no approved nomination.

6. The applicants, Mrs Delma Abraham and Mr Amal Joseph, appeared before the Tribunal on 17 November 2020 to give evidence and present arguments. The applicants were not represented at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. Prior to the hearing, the applicant made a written submission to the Tribunal as follows:

   I made an application for the Regional Employer Nomination (subclass 187) visa on 27th April 2017 in the direct entry stream. I was sponsored by the business Ross River Species Pty Ltd (Trading name - Paradise Bar and Restaurant)  for this visa. However, the nomination was refused by the department of immigration on 17th July 2019.

   The owner of Ross River Species (Trading name - Paradise Bar and Restaurant) Mr Thomas Joseph confirmed that he will be reopening the Restaurant (Paradise Bar and Restaurant) soon. Also, he is currently undertaking all necessary processes for reopening the Business.

   Moreover, if  Mr Thomas couldn’t reopen the Restaurant within a specific period of time, we will be seeking a nomination from another sponsor as well.

   Therefore, we request you to allow us additional time until Mr Thomas reopens the Restaurant which will subsequently help us in the grant of our Subclass 187 visa application. 

10. At the hearing, Mrs Abraham gave some background to this matter consistent with the written submission.  She stated that she was working on the Gold Coast in Queensland when she applied for the nominated position of Restaurant Manager for the nominator.  She stated that she moved from the Gold Coast to Townsville to start working at the Ross River Road restaurant in August 2017. She stated that the business owner then started the Paradise Bar and Café and she moved there to run that café in September 2017.  She stated that she was responsible for helping to establish the new business, including hiring staff. She stated that the business was running well and was making a good profit and that in approximately August 2019 the owner closed the restaurant for renovations. She stated that she was expecting the business to re-open, but then she received the notification that her Subclass 198 visa application had been refused.

11. At the hearing, the Tribunal explained that the issue in this case is whether the related nomination application had been approved, being the nomination lodged by Ross River Spices.  The Tribunal explained that in this case the related nomination was refused and while the nominator lodged an application to review the decision, the Tribunal found that it did not have jurisdiction to review that application as the company had been deregistered.  The Tribunal explained that this meant that there was no approved nomination relating to the applicant’s visa application and no appeal before the Tribunal and the matter had been finally determined.  The Tribunal explained that it understood the circumstances were difficult but that the Tribunal does not have discretion in relation to the requirement in cl.187.233(3) that the related nomination application has been approved.

12. Mrs Abraham stated that she was not expecting this, that the business was making a good profit and she was not aware they were experiencing difficulties. She stated that she trusted the business owners and would have pursued sponsorship with a different business if she had known.  She requested the Tribunal give her two to three months to seek another sponsor.

13. The Tribunal explained that for the Subclass 187 visa to be approved the related nomination application, being the nomination referred to in cl.187.233(1), must be approved.  In this case the related nomination was not approved and that a new nomination application cannot satisfy this requirement. The Tribunal then raised adverse information with the applicants in accordance with the requirements of s.359AA of the Act.  The Tribunal provided the particulars of the information, explained the relevance of the information and outlined the consequences of the Tribunal relying on the information, as follows:

    ·the application for approval of the nominated position made by the nominator (Ross River Spices Pty Ltd) in respect of the applicant’s Subclass 187 visa application was refused by a delegate on 17 July 2019.  That decision was the subject of a review applicaton with the Tribunal, but on 30 February 2020 the Tribunal found it did not have jurisdiction to consider the review application because the nominating business had been deregistered and ceased to exist as a legal entity. 

14. The Tribunal explained that this information was relevant to the review because it indicates that there is no approved nomination in respect of of the applicant and no nomination on review with the Tribunal, and it is a requirement for the grant of the Subclass 187 visa that the position specified in the applicant’s visa application, being the position in respect of which the applicant made the visa declarations, is the subject of an approved nomination. The Tribunal explained that a new nomination application cannot satisfy this criteria.  The Tribunal explained that if the Tribunal relies on the information in making its decision, the Tribunal may find that the position specified in the applicant’s visa application is not the subject of an approved nomination, and that this would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review.

15. The Tribunal explained further that if the Tribunal relied on the information in making its decision, the Tribunal may also find that the second names applicant does not satisfy the requirements of the grant of the visa, as his claim is on the basis that he is a member of the family unit of an applicant for a Subclass 187 visa, and that this would mean that he does not satisfy the requirements of cl.187.311, as he is not a member of the family unit of a person who has been granted a Subclass 187 visa. The consequences of the Tribunal relying on this information is that the Tribunal must affirm the decision under review in relation to the secondary appplicants.

16. The Tribunal invited the applicants to comment on or respond to the information or seek additional time to comment on or respond to the information.  Mrs Abraham requested additional time to comment on or respond to the information, which was granted to 1 December 2020.

17. By email received on 30 November 2020, the applicants made the following submissions:

    Thank you for providing us 2 weeks of additional time for seeking help from a lawyer
    regarding the company deregistration.

    We tried contacting Tonio lawyers(our previous representative) for providing
    explanations/documents regarding the company deregister. Unfortunately, Tonio lawyers are asking us to pay $4000 to help and/or providing documents related to this visa application. Also, we tried seeking help from other lawyers as well and unfortunately, all are busy at this moment. Additionally, Mr Thomas Joseph (the owner of Ross River Species) confirmed that he will be reopening the same Restaurant soon, probably under the same business name. Hence, we kindly request you to allow us additional time until Mr Thomas reopens the Restaurant and also most importantly for finding a suitable lawyer as well which will subsequently help us in the grant of our Subclass 187 visa application.

18. By letter dated 3 December 2020, the Tribunal responded to the applicant, declining the request for an extension of time, as follows:

    At the hearing of this matter, the Presiding Member noted that it is a requirement for the grant of a Subclass 187 visa that the related nomination application, being the nomination referred to in cl.187.233(1) of the Migration Regulations (the Regulations) has been approved. The Presiding Member then put adverse information to you in accordance with the requirements of s.359AA of the Migration Act 1958 (the Act) that the Member considered, subject to any comments or response, would be the reason or part of the reason for affirming the decision that is under review. The Presiding Member stated the particulars of the adverse information, identified the relevance of the information and outlined the consequences of the Tribunal relying on the adverse information. The particulars were identified as follows:

    ·The nomination application lodged by Ross River Spices Pty Ltd (the nominator) for the nominated position of Café/Restaurant Manager (ANZSCO 141111) in respect of you, being the nomination referred to in cl.187.233(1) (the nomination), was refused by a delegate of the Minister of Home Affairs on 17 July 2019. While the nominator lodged an application for review of that decision, on 30 February 2020 the Tribunal found that it did not have jurisdiction to consider the review application because on 13 October 2019 the nominating business had been deregistered and had ceased to exist as a legal entity.

    ·A new nomination application cannot meet the requirement in cl.187.233(3) that the related nomination application has been approved.

    The Tribunal noted that the information was relevant to the review because it is a requirement for the grant of a Subclass 187 visa that there is an approved nomination, being the nomination referred to in cl.187.233(1), as required by cl.187.233(3). The Tribunal noted further that if the Tribunal were to rely on the information in making its decision, the Tribunal may find that the position specified on the applicant’s Subclass 187 visa, being the nominated position of Café/Restaurant Manager, is not the subject of an approved nomination by the nominator and that this would mean that the applicant does not satisfy a requirement for the grant of a Subclass 187 visa (as specified in cl.187.233(3)) and that the Tribunal must affirm the decision under review.

    The Tribunal noted further that if it were to rely on the information in reaching a decision in relation to the secondary applicant it may find that the secondary applicant does not meet the requirements of cl.187.311, as he would not be the member of a family unit of a person who has been granted a Subclass 187 visa, and as such the Tribunal must affirm the decision under review in relation to the secondary applicant.

    At the hearing the Tribunal invited you to comment on or respond to the adverse information and you requested two weeks to do so, which the Tribunal granted. The Tribunal notes you are now requesting further additional time on the basis that you require time to enable your nominator to ‘reopen the restaurant’ and for you to find a ‘suitable lawyer as well which will subsequently help us in the grant of our Subclass 187 visa application’.

    The Presiding Member has carefully considered your request and on this occasion has determined not to grant you any further additional time. In doing so, the Tribunal notes that the objective of the Tribunal (as set out in section 2A of the Administrative Appeals Tribunal Act 1975) is to provide a mechanism of review that is, amongst other matters accessible, fair, just, economical, informal, and quick and proportionate to the importance and complexity of the matter. The Tribunal notes that the determinative issue in your case is whether the related nomination has been approved, being the nomination referred to in cl.187.233(1). The Tribunal notes further that as the nominating business has been deregistered, and as the Tribunal determined it did not have jurisdiction in relation to the review of the decision to refuse the nomination application, there is no pending review application before this Tribunal and the matter has been finally determined. As such, it appears that you do not meet the requirement for the grant of your Subclass 187 visa application, in that there is no related approved nomination. The Tribunal notes further that lodging a new nomination application may not meet the requirements for the grant of your Subclass 187 visa application under review.

    The Tribunal considers you have been given a fair opportunity to give evidence and
    present arguments in support of your case and for the Tribunal to question you in a fair and effective manner with ample procedural fairness. In these circumstances and following careful consideration, the Tribunal has decided to proceed to making a decision on the review.

    The Presiding Member notes that she will not be making a decision on this matter

    before 17 December 2020 and invites you to make any further submissions or provide further information in support of your case in writing, including by commenting on or responding to the adverse information put to you at the hearing under s.359AA of the Act and reiterated above, by 17 December 2020.

19. As at the date of this decision, the Tribunal has received no further correspondence, comment or response from the applicant. 

    Nomination of a position

20. 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.

21. 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 r.1.13A and r.1.13B of the Regulations); 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.

22. The applicant applied for a Subclass 187 visa on the basis of the nomination application made by the nominator for the nominated position of Café/Restaurant Manager (ANZSCO 141111).  A delegate of the Minister refused the nomination application on 17 July 2019 and while the nominator lodged a review application in respect of that decision with the Tribunal, on 30 February 2020 the Tribunal found it did not have jurisdiction to consider that application as the nominating business had been deregistered. This means that there is no approved nomination in respect of the position to which the applicant’s visa application relates and the decision of the delegate in relation to the nomination application is final. As such, the applicant does not meet the requirement in cl.187.233(3) that the related nomination has been approved.

23. Accordingly, following careful consideration, the Tribunal finds that cl.187.233(3) is not met. Therefore, cl.187.233 is not met.

24. 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.

25. The only basis of the application of the second named applicant is that he is a member of the family unit of the person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.187.311(a).  As the first named applicant does not meet the primary criteria and has not been granted a Subclass 187 visa, the decision to refuse the application of the second named applicant must also be affirmed because he does not satisfy cl.187.311.

    DECISION

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

    Phoebe Dunn
    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.