Ali (Migration)

[2021] AATA 5594

Ali (Migration) [2021] AATA 5594 (29 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Ali

CASE NUMBER:  1908750

HOME AFFAIRS REFERENCE(S):          BCC2017/3805061

MEMBER:Nicola Findson

DATE:29 September 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 29 September 2021 at 10:18am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – retail manager – subject of approved position nomination – related nomination application refused and no jurisdiction to review – no response to tribunal’s invitation to comment or appearance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 362B, 379A(5)
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 on 25 March 2019 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 applied for the visa on 17 October 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 (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 applicant is seeking the visa in the Direct Entry stream, to work for West Fuel Pty Ltd in the nominated position of Retail Manager (General) (ANZSCO 142111).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because there was no approved nomination.

6. On 31 August 2021, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application, but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 21 September 2021. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

7. On 14 September 2021, the applicant advised the Tribunal that he wanted to give oral evidence. However, he did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that: the review applicant was properly invited to a hearing in accordance with s 379A(5); the invitation has not been returned to sender; and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

8. 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

9. 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.

10. 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.

11. The delegate’s decision record, provided to the Tribunal by the applicant for the purposes of the review, sets out that on 22 February 2019, the nomination lodged by West Fuel Pty Ltd was refused by a delegate of the Minister for Home Affairs, on the basis that cl 187.233 was not met. 

12. On 2 September 2021, the Tribunal wrote to the applicant pursuant to s 359A of the Act, and invited his comments on the following information it considered would be the reason or part of the reason for affirming the decision under review:

    On 15 March 2019, the Tribunal received an application for review of the decision of the Department of Home Affairs to refuse a nomination in respect of West Fuel Pty Ltd.  On 16 November 2020, the Tribunal found that it had no jurisdiction to review the Department’s decision to refuse the nomination.  Consequently, the Decision made by the Department of Home Affairs on 22 February 2019, to refuse the nomination, stands.

    The letter indicated that the above information was relevant because the Tribunal may find that the applicant did not meet the requirements of cl. 187.233, which requires there to be an approved nomination in relation to the applicant.

13. On 14 September 2021, the applicant requested an extension of time to respond to the Tribunal’s invitation. The applicant indicated in his written request that his “employer is not reachable” and that he needed more time to “organise the documentation”.  In all the circumstances, the Tribunal considered it reasonable for the applicant to provide his comments by 21 September 2021.  In a letter dated 16 September 2021, the Tribunal advised that if the comments were not provided by 21 September 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments.

14. The applicant has not provided a response to the Tribunal’s s 359A letter within the period as extended.  In addition, the Tribunal invited the applicant to a hearing on 21 September 2021, however, the applicant did not attend.

15. On the basis of the information before it, the Tribunal finds that at the time the applicant lodged his visa application on 17 October 2017, he was the subject of a nomination application by West Fuel Pty Ltd for the position of Retail Manager.  The Tribunal further finds that the nomination application made by West Fuel Pty Ltd was refused by the Department on 22 February 2019, and although West Fuel Pty Ltd sought review of the refused nomination, on 16 November 2020 the Tribunal (differently constituted) found it had no jurisdiction to review the Department’s decision. 

16. Accordingly, the Tribunal finds that the nomination made by the applicant’s proposed employer has not been approved.

17. Therefore, cl 187.233 is not met.

18. 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

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

    Nicola Findson
    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.