Akram (Migration)

[2022] AATA 4861

Akram (Migration) [2022] AATA 4861 (8 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hassan Akram

CASE NUMBER:  1912413

HOME AFFAIRS REFERENCE(S):          BCC2017/3124219

MEMBER:Alan McMurran

DATE:8 November 2022

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 08 November 2022 at 4:34pm

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Retail Manager – nomination application associated with the position was refused – not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 19 May 2019 for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Mr Hassan Akram, is a citizen of the Islamic Republic of Pakistan, nominated for the position of Retail Manager (ANZSCO 142111) by the nominator, The Trustee for Superate Unit Trust (Lorne) trading as The Foodworks Lorne.

3. The applicant applied for the visa on 29 August 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

4. 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.

5. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, because the Minister had not approved the nomination.

6. The applicant appeared before the Tribunal on 8 November 2022 by telephone to give evidence and present arguments. The Tribunal determined this was the most efficient way to achieve its objective to provide a mechanism of review that is fair, just, economical, informal and quick, and proportionate to the importance and complexity of the matter.

7. The applicant indicated he was ready and willing to proceed by telephone, and no objection was taken to the form of hearing, and no adjournment sought. The applicant took the opportunity to explain his circumstances to the Tribunal, as he had already set out in his written submissions. The hearing was conducted in the English language and the applicant had not sought the services of an interpreter. The Tribunal formed the view the applicant was fluent in English and did not detect any interpretation issues, and none were raised during the hearing.

8. The applicant had the assistance of a migration agent to prepare his submission but was otherwise unrepresented for the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant can meet the criterion in sub-regulation 187.233(3), on the basis the Minister has approved the nomination in favour of the visa applicant.

11. The Tribunal had regard to electronic extracts from the Department file and the Tribunal’s file, which included the applicant’s written submissions. Those submissions attached details of the nomination, and the applicant’s tasks and duties, together with a copy of his employment agreement with the nominator and his accredited Business Diploma. It also referred the Tribunal to a retail labour shortage from a publicly available survey.

    The hearing

12. The Tribunal explained its role in the proceedings to the applicant, and the requirement in the Act and Regulations for an approved nomination. The applicant was asked for his comments and any additional submissions he may wish to make.

13. The applicant explained firstly that he did not need an interpreter and had not engaged his agent for the hearing. He said that he is now married and his spouse is in Australia on a student visa, while he remains on a Bridging B visa. He said his spouse is also a citizen of Pakistan.

14. He said he is currently looking for another sponsor, aware that his original nominator had withdrawn the offer of sponsorship, following a business downturn during the pandemic. He said he is currently working for Amazon at a warehouse in the Sydney suburb of Bellavista. He said he has been in Australia since 2014, firstly as a student and living in Melbourne until March 2022 when he moved to Sydney. He said he has worked in various hospitality jobs, including at McDonalds, Dominoes, Belaware, and now at Amazon where he has remained since about April 2022. He is uncertain about his future employment and has applied “for a couple of jobs” without response. He said that most potential employers are not interested if he does not have a current substantive visa.

15. This statement was at odds with the applicant’s written submission of 21 October 2022, where he states he is “on talking terms with an employer who is ready to sponsor me and offer me a job in the same occupation in the respective business”. At the hearing, the applicant did not identify any prospective sponsor, only that he is currently employed as a casual by Amazon. The Tribunal accepts however the applicant’s statement at the hearing that he is still looking for a future sponsor and further employment.

16. The Tribunal explained to the applicant that the regulation requires that he is successfully nominated by the nominator for the position specified. Without that successful nomination, his visa application cannot succeed on the basis of the existing information. He said he understood the circumstance but had nothing further to add. He said he understood it is still open to him to seek migration advice from his representative as to his available options.

    Nomination of a position

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

18. 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 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.

19. The Tribunal finds on the available information that the nomination of the applicant for the position of Retail Manager was refused by the Department on 11 April 2019, for the reason that the delegate was not satisfied that the nominator would be able to continue to employ the visa applicant for at least 2 years. The nominator then sought review in the Tribunal, and which application for review was withdrawn by the nominator and finalised by the Tribunal on 24 May 2022.

20. The Tribunal finds there is no approved nomination in favour of the applicant.

21. The Tribunal further finds on the available information that there is no current application for review and is further satisfied that there is no present likelihood of a sponsorship application being made on behalf of the applicant by a prospective employer, and which might otherwise support a decision for deferring the outcome of this review pending such application. The information and evidence is that the visa applicant is currently a casual employee with no approved sponsor or pending nomination for the position. The Tribunal notes that the current “dilemma” referred to by the applicant is not of his making and is entirely out of his control. The Tribunal however has no discretion to waive the requirements of the Act or Regulations.

22. The Tribunal finds therefore that the applicant cannot meet the criteria in the Regulations for the Direct Entry stream as the Minister has not approved the nomination application related to this visa application, or indeed, any other application in favour of the visa applicant and there is no reasonable likelihood of any further application being made in the foreseeable future.

23. Consequently, the Tribunal finds that cl 187.233 is not met.

    Summary

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.

    decision

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

    Alan McMurran
    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.