Aman (Migration)

[2019] AATA 6263

Aman (Migration) [2019] AATA 6263 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aman Aman

CASE NUMBER:  1904549

HOME AFFAIRS REFERENCE(S):          BCC2017/3438570

MEMBER:Jennifer Cripps Watts

DATE:18 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2019 at 4:51pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
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 (the delegate) 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 20 September 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 (the Regulations). 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 Cook.

5. On 8 February 2019, 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 relating to his visa application, because the nomination application was refused.

6. On 27 February 2019 the applicant applied to the Tribunal for merits review and provided a copy of the delegate’s decision with the review application.  On 25 November 2019, the Tribunal sent the applicant an invitation to attend a hearing scheduled on 18 December 2019.

7. The applicant appeared before the Tribunal on 18 December 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant’s visa was refused because he did not meet cl.187.233 because he had no nomination, it had been refused.  The issue on the review is the same substantive issue, that is, whether the applicant has an approved nomination relating to his Subclass 187 visa application.

10. The applicant, who indicated in his review application that he lives in Longreach in Queensland, was invited to attend the Tribunal hearing by phone.  When exercising the discretion to have the hearing by phone, in the circumstances of this case the Tribunal decided to hold the hearing remotely because the applicant lives some distance from the Sydney registry and attending the hearing in person would involve them potentially incurring significant cost and inconvenience, the issue on the review was the same substantive issue as was before the delegate and the Tribunal was satisfied that having a phone hearing would not prejudice the applicant’s right to a fair hearing.

11. The Tribunal has considered the same substantive issue as the delegate, whether the applicant meets cl.187.233, and is satisfied that all relevant matters have been considered in reaching its decision.

12. Subclause 187.233(1)(b) requires that:

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

    … (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.

13. Subclause 187.233(3) requires that:

    (3)  The Minister has approved the nomination.

14. In the delegate’s decision, it is noted that they wrote to the applicant on 7 January 2019, informing him that on 20 March 2019 the nomination application lodged by B & D Partners Pty Ltd as The Trustee for B & D Partners Family Trust (the nominator referred to in cl.187.233(1)(b)) was refused by a delegate of the Minister for Home Affairs.   It is noted that on 8 February 2019 no response had been received

15. The delegate refused the visa because the applicant did not meet the requirements of cl.187.233 of Schedule 2 to the Regulations.

16. On 3 November 2019, the Tribunal wrote to the applicant, by way of a s.359A letter, and gave the applicant particulars of information it considered would be the reason, or a part of the reason, for affirming the decision under review.  A summary of the application for the nomination by B & D was included, as was the adverse information, which was this:

    ·On 20 September 2017 you made an application for a Subclass 187 Regional Employer Nomination visa on the basis of the Direct Entry Stream. The company you included in your visa application was B & D Partners Pty Ltd as the Trustee for B & D Partners Family Trust (B & D Partners).

    ·To be granted a Subclass 187 visa, you must have a current nomination that has been approved and not withdrawn.  It must be by the same company that you included in your visa application. If you do not have an approved nomination by B & D Partners, you cannot meet the criteria for the grant of the visa.

    ·Relevant to your case and the issue on the review, you must satisfy cl.187.233(3) of Schedule 2 to the Migration Regulations, which requires that the Minister has approved the nomination.

    ·On 7 January 2019, the nomination relating to your Subclass 187 visa, lodged by B & D Partners, was refused by a delegate for the Minister for Home Affairs.

    ·On 24 January 2019, B & D Partners made an application to the Tribunal for review of the decision not to grant their nomination. On 13 September 2019, the Tribunal (differently constituted) found that it had no jurisdiction to review the decision because B & D Partners had been deregistered by the Australian Securities and Investments Commission, had ceased to be a legal entity and therefore had no standing to apply for, or continue with, an application for review.

    ·On the evidence before the Tribunal, because you do not have an approved nomination by B & D Partners, it appears you cannot satisfy cl.187.233(3). If you cannot satisfy cl.187.233(3), you cannot meet the primary criteria for the grant of the visa.

17. On 17 December 2019, the Tribunal received an email from the applicant attaching PAYG statements for 2018 and 2019 and a claim that this is evidence that he has worked for B & D Partners as a cook for two years.  The Tribunal has considered this information, but it is not evidence that the applicant is the subject of a nomination by B & D Partners.

18. At the Tribunal hearing the applicant said he arrived in Longreach in September in 2017, applied for the job as a cook with B & D Partners and they agreed to sponsor him.  He said he worked there to 27 January 2019 and said they sold the company but told him it would not affect his visa.

19. The Tribunal confirmed with the applicant that he had received the letter sent to him on 3 December 2019 and whether he understood it.  He confirmed he did.  He was reminded that his is not the subject of an approved nomination and that this means he cannot meet the primary criteria for the grant of the visa. 

    Nomination of a position

20. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. In summary, 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.

21. There is no evidence before the Tribunal that B & D Partners was not deregistered by ASIC, nor is there evidence that, if they were deregistered, they have been reregistered by ASIC.  In any event, even if B & D Partner was deregistered and then reregistered (or is in the process or reregistration), there is still no approved nomination by them relating to the visa applicant’s Subclass 187 visa application made by him on 20 September 2017.

22. On the evidence, and for the reasons given, the applicant does not meet cl.187.233.

23. 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

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

    Jennifer Cripps Watts
    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.