Ali (Migration)

[2018] AATA 3510

Ali (Migration) [2018] AATA 3510 (6 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hussain Ali

CASE NUMBER:  1620729

HOME AFFAIRS REFERENCE(S):           BCC2016/121600

MEMBER:Alan McMurran

DATE:6 August 2018

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 06 August 2018 at 10:20am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Nomination withdrawn - Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

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 Immigration and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Accountant (General)[1]

   [1] ANZSCO 221111

5. The delegate refused to grant the visa because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations because the nomination lodged by the nominator, Ultimate Facilities Services Pty Ltd, was refused.[2]

   [2] DIBP case file BCC2016/108357

6. The applicant was represented in relation to the review by his registered migration agent.

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 the applicant is the subject of an approved nomination and that regulation 187.233(3) has been met.

   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 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); 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. For the purposes of this review, the Tribunal has had access to the Department’s file[3], together with the information on the Tribunal’s file and the nominator’s file[4].

    [3] BCC 2016/121600

    [4] BCC 2016/108357

12. The nomination was refused by decision of the Department’s senior case officer on 14 October 2016. The nominator lodged an application for review in the Tribunal of the refusal of the nomination, on 3 November 2016.

13. On 9 July 2018, the nominator sent an email to the Tribunal with a signed withdrawal of the application for review by the nominator.

14. On 16 July 2018, the Tribunal wrote to the nominator accepting the withdrawal and advising that as a consequence, the Tribunal no longer has jurisdiction to review the delegate’s decision in respect of the nomination.

15. On 18 July 2018, the Tribunal wrote to the representative for the visa applicant advising that the application for the nomination was withdrawn and that the nominated position was therefore not approved. The visa applicant was invited to comment or respond to this information in writing by 1 August 2018. The invitation also advised that the applicant could seek an extension of time, setting out the reasons why an extension was necessary.

16. The Tribunal did not receive any response from the visa applicant to the written invitation to comment.

17. The Tribunal finds that the application by the nominator for the occupation of Accountant (General) has not been approved. The Tribunal finds that the visa applicant is not the subject of a nomination that has been approved by the Minister, and which has not been withdrawn.

18. Therefore, cl.187.233 is not met.

19. 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

20. 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

    (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.