Ahmed (Migration)

[2024] AATA 288

Ahmed (Migration) [2024] AATA 288 (28 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shafiq Ahmed
Mrs Fahmida Shahinur

Master Abdullah Mabrur

REPRESENTATIVE:  Mr Mohammad Ahasan Ali (MARN: 0851085)

CASE NUMBER:  1926679

HOME AFFAIRS REFERENCE(S):          BCC2019/553350

MEMBER:Susan Reece Jones

DATE:28 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.233 of Schedule 2 to the Regulations

Statement made on 28 January 2024 at 6:21pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 2.72, 5.19; 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 20 February 2019. 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 Cook (ANZSCO 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the nomination did not satisfy reg 5.19(9)(h) of the Regulations because the delegate was not satisfied that the applicant had determined the AMSR for the nominated occupation in accordance with method specified in IMMI 18/033 and therefore paragraph 2.72(15)(c) was not met.

6. On 9 August 2022, the Tribunal was advised that the applicants registered migration agent, Ms Shalini Vellapandian of Focus Migration was no longer acting on behalf of the applicant and the applicants had appointed a new migration agent, Mr Mohammad Ahasan Ali of ImmiVisa.

7. In reaching a decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of all the material before it, pursuant to s.360(2)(a) of the Act.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the relevant nomination has been approved as required by 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 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 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.

12. The nominator, The Trustee for Neumann Family Trust operates the Royal Hotel in Gundaroo, regional NSW and trades under the business name “Grazing Restaurant”.

13. The applicant applied for a visa on the basis of a nomination made by the nominator. The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which he made the relevant declaration at the time of the visa application, was refused by the Department on 29 June 2019.

    Non-disclosure certificate

14. In regard to the application of the nominator, regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the applicant or a person associated with the applicant (for example, the applicant), or it is reasonable to disregard any such information.

15. ‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:

    ·has contravened a law of the Commonwealth, a State or a Territory, or

    ·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law.

16. On 3 November 2023, the Tribunal wrote to the nominator pursuant to s359A of the Act to inform the nominator about a certificate issued pursuant to s.375A of the Migration Act 1958 (the Act), which is on the Department’s file. The Tribunal advised the nominator about the potentially adverse information on the Department’s file, namely that there is an allegation which was received by the Department that the applicant has paid the nominator in order for the applicants to obtain the visa and remain in Australia. The nominator was invited to comment on or respond to that information.

17. The nominator was further advised that this information if accepted, may indicate that the nominator has contravened s 245AR of the Act which prohibits asking for or receiving a benefit for a sponsorship related event. The consequences of the Tribunal relying on this information is that the Tribunal may find that there is adverse information known to Immigration about the nominator (and the applicant) and therefore the nominator would be unable to meet reg 5.19(4)(b), and/or that there is no genuine need for the position such that the nominator would not meet reg 5.19(9)(d).

18. The nominator responded to the Tribunal’s letter of 3 November 2023 on 21 November 2023, again on 12 December 2023 and also on 19 December 2023, regarding the matters contained in the non-disclosure certificate and provided additional submissions and documents in support of the nominator’s case and this application.

19. Having regard to all the information provided in support of the nominator’s application and this application upon review, the Tribunal has formed the view that there is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the nominator, the applicants or an associated person.

20. On this basis, on 28 January 2024, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

21. As the relevant nomination in respect of the applicant has now been approved, the applicant meets the requirements in cl.187.233(2). Therefore, given the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

22. As the Tribunal is remitting the applicant of the first name visa applicant with a finding that he meets the requirements of clause.187.233(2), the remaining criteria for the applicant should now be reconsidered. In addition, the application of the second and third named visa applicants should also now be reconsidered in full.

    DECISION

23. The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233 of Schedule 2 to the Regulations

    Susan Reece Jones
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.