Ali (Migration)

[2018] AATA 4847

Ali (Migration) [2018] AATA 4847 (2 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ahmad Ali

Mrs Anbia
Miss Ishmal
Master Muhammad Royan Khan
Miss Tabeer Ahmad

CASE NUMBER:  1620825

HOME AFFAIRS REFERENCE(S):           BCC2016/202033

MEMBER:Susan Trotter

DATE:2 October 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 02 October 2018 at 8:29am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry scheme – nominated position – Retail Manager – not subject to approved nomination – decision under review affirmed

PRACTICE AND PROCEDURE – no response to hearing invitation

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19 Schedule 2 cls 187.223, 187.311

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the then Minister for Immigration and Border Protection[1] (the Minster) to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

   [1] Now the Minister for Immigration, Citizenship and Multicultural Affairs

2. The applicants applied for the visas on 14 January 2016. 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 Retail Manager.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.187.223(3) because the applicant was not the subject of an approved nomination as required.

6. The applicants were represented in relation to the review.

7. On 14 September 2018, the Tribunal invited the applicants to comment on or respond to certain information before it. The Tribunal’s letter stated as follows:

   I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Regional Employer Nomination (Permanent) visas.

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   ·Department of Home Affairs (previously the Department of Immigration and Border Protection) (the Department) records indicate that on 14 January 2016, A&A.1 Pty Ltd lodged an application for approval of an employer nomination in the Direct Entry stream under subregulation 5.19(4) of the Migration Regulations 1994 (the Regulations) with the Department. This application identified the nominated person as Mr Ahmad Ali;

   ·On 14 January 2016, you lodged an application for a Subclass 187 Regional Employer Nomination (Permanent) visas with the Department. In this application you provided the employer nomination details for the employer application lodged by A&A.1 Pty Ltd on 14 January 2016;

   ·On 3 November 2016, the Department refused the employer nomination application lodged by A&A.1 Pty Ltd and on 18 November 2016 and A&A.1 Pty Ltd applied for review of that decision. On 15 February 2018, the Tribunal affirmed the decision to refuse the approval of the nominated made by A&A.1 Pty Ltd’s in relation to Mr Ahmad Ali;

   ·As a result, there is no evidence as at the date of this letter that the nomination application lodged by A&A.1 Pty Ltd in favour of Mr Ahmad Ali has been approved;

   ·There is also no evidence before the Tribunal that A&A.1 Pty Ltd has lodged an application for approval of a nomination in the Temporary Residence Transition stream under subregulation 5.19(3) identifying Mr Ahmad Ali as the nominated person;

   ·Nor is there any evidence before the Tribunal to indicate that the position nominated by A&A.1 Pty Ltd was in accordance with a labour agreement that is in effect and to which A&A.1 Pty Ltd is a party.

   The above information is relevant to the review because if the Tribunal relies upon it in making its decision:

   ·the Tribunal may find that Mr Ahmad Ali does not meet the requirements of cl.187.233(3) of Schedule 2 to the Regulations at the time of the Tribunal’s decision because the Minister has not approved the nomination lodged by A&A.1 Pty Ltd as required by that subclause;

   ·Further, the Tribunal may find that the position to which Mr Ahmad Ali’s visa application relates is not a position nominated in an application for approval under subregulation 5.19(3) such that Mr Ahmad Ali cannot meet the requirements of cl.187.223 of Schedule 2 to the Regulations at the time of the Tribunal’s decision;

   ·Further, the Tribunal may also find that the position to which Mr Ahmad Ali’s visa application relates was not a position nominated by A&A.1 Pty Ltd in accordance with a labour agreement that is in effect and to which A&A.1 Pty Ltd is a party such that Mr Ahmad Ali cannot meet the requirements of cl.187.242 of Schedule 2 to the Regulations at the time of the Tribunal’s decision;

   ·Accordingly, the Tribunal may find that Mr Ahmad Ali cannot meet the requirements of cl.187.233, cl.187.223 or cl.187.242 and, therefore, that the decision under review to refuse to grant the visa to Mr Ahmad Ali must be affirmed.

   Further, the information is relevant to the second, third, fourth and fifth named review applicants because cl.187.311 of Schedule 2 to the Regulation provides that the secondary applicants meet the requirement of that subclause if they are members of the family unit of the primary applicant (Mr Ahmad Ali) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa. Accordingly, if the decision under review to refuse to grant the visa to Mr Ahmad Ali is affirmed and he is not the holder of a Subclass 187 visa, the secondary applicants will not be able to meet cl.187.311 as required.

   You are invited to give comments on or respond to the above information in writing.

   Your comments or response should be received by 28 September 2018. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

   If you cannot provide your written comments or response by 28 September 2018, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 28 September 2018 and you must state the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

8. The invitation was sent to the applicants’ nominated authorised recipient, their registered migration agent, at the address last provided in connection with the review, being the recipient’s email address as advised to the Tribunal.

9. As at the date of decision, no response had been received to the Tribunal’s 14 September 2018 invitation. The Tribunal therefore did not receive any response to its letter of 14 September 2018 within the prescribed time for responding to the statutory invitation, nor was an extension of time sought. As the applicants failed to provide written comments or a response within the prescribed time, s.359C(2) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the applicants’ comments or response.

10. Further, as s.359C(2) of the Act applies to the applicants, they lose any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review: s.360(3) of the Act.

11. Although neither the applicants nor their representative has requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review.

12. 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. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

13. Neither the applicants not their representative provided any response or comment to the Tribunal invitation within the prescribed period set for this purpose.

14. The Tribunal has had regard to the fact that the visa applications were refused on 7 December 2016 for the reasons stated above. The applicants provided a copy of the delegate’s decision record with the review application. The Tribunal therefore observes that the applicants have been aware for nearly two years of the reasons for the visa application refusal.

15. The Tribunal has also taken into account the fact that the applicants have had the benefit of representation from a registered migration agent in order to assist them with this application and considers it reasonable to expect the applicants’ representative, as a registered migration agent, has an understanding of the requirements of the legislation and the implications of the invitation the Tribunal sent to the applicants on 14 September 2018, which consequences were also set out in the Tribunal’s letter of 14 September 2018.

16. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issue arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that the applicant meets the requirements of paragraph 187.233(3) for the purposes of the Subclass 187 visa application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

    Nomination of a position

19. 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.

20. In addition, this criterion also requires that:

    (a)  the person who will employ the applicant is the person who made nomination;

    (b)  the nomination has been approved and has not been subsequently withdrawn;

    (c)  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;

    (d)  the position is still available to the applicant, and

    (e)  the visa application was made no more than six months after the nomination of the position was approved.

21. As noted in the Tribunal’s 14 September 2018 letter to the applicants, the evidence before the Tribunal is that nomination application lodged by A&A.1 Pty Ltd on behalf of the applicant was refused by the Department on 7 December 2016 and on 15 February 2018 the Tribunal affirmed that decision[2]. As a result, the Tribunal finds that the applicant does not meet the requirements of cl.187.233 at the time of its decision.

    [2] Tribunal file no 1619433

22. 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 in relation to the applicant must be affirmed.

23. The Tribunal must also affirm the decision not to grant the second to fifth named applicants a Subclass 187 visa as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a Subclass 187 visa, and there is no evidence that they meet the primary visa criteria for this Subclass in their own right.

    DECISION

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

    Susan Trotter
    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.