Ara (Migration)

[2019] AATA 2149

Ara (Migration) [2019] AATA 2149 (17 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Shamim Ara
Mr Shahab Uddin

CASE NUMBER:  1715109

HOME AFFAIRS REFERENCE(S):           BCC2017/437747

MEMBER:Alan McMurran

DATE:17 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 17 April 2019 at 3:32pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visas – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Hairdresser – no approved nomination – nomination application withdrawn – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 2 February 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). 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 Hairdresser.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, as the applicant was not the subject of a nomination which the Minister has approved. The applicant has sought review of that decision.

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

   Background

7. The applicant is a citizen of Bangladesh and came to Australia as a student on 24 February 2013. The applicant was initially represented in these proceedings by the applicant’s lawyer, but the representative has since withdrawn.

8. The applicant holds a Master’s degree in Arts in Islamic studies from the National University of Bangladesh, together with a Bachelor degree in Arts from the same University. The applicant obtained a Diploma of Hairdressing and Salon Management and an AQF Certificate IV from the Australian Hair and Beauty College Pty Ltd. In Sydney.

9. The secondary applicant is the applicant’s husband and family member, also from Bangladesh and who holds a Bachelor degree in Science (Engineering) from Bangladesh and a Master of Management (Engineering) from Central Queensland University. At the time of decision, the applicants are living in Darwin, Northern Territory.

10. The applicant was the nominee in an application lodged on behalf of Fame Hair and Beauty Saloon Pty Ltd. The nomination application was lodged on 2 February 2017. The nomination was refused by the Department on 22 May 2017 as the nominator had not supplied relevant information when requested to do so by the Department to support the nomination. The nominator sought review of that decision in the Tribunal case file 1712059.

11. The applicant was to be employed by the nominator to work at a salon in Scone in regional New South Wales. On 15 November 2018, the nominator advised the Tribunal that the salon has been closed and the applicant would not be employed.

12. On 21 March 2019, having considered all the available information and the opportunities provided to the nominator to respond, the Tribunal affirmed the delegate’s decision to refuse the nomination.

13. In this review, the Tribunal wrote to the applicant on 28 March 2019 informing the applicant of particulars which would be the reason, or a part of the reason for affirming the decision to refuse the visa application, the review of the nomination decision having been determined and the Department’s decision affirmed. The applicant was requested to respond by 11 April 2019.

14. On 10 April 2019, the Tribunal received a written request from the applicant to “explain my situation in more detail”. The applicant stated that she was not aware that the sponsor “has not enough supporting documents to sponsor me”. The applicant further advised that “once my nomination had refused, she refused to sponsor me instead of providing her necessary business documents to support my nomination. After that she informed me to stop her business. On that time, I was not in a situation to look for a second sponsor in my skill occupation.” The applicant requested the Tribunal “to give me a few months extension in order to avoid deportation from Australia”.

15. On 10 April 2019, the tribunal wrote to the applicant granting an extension of time for the provision of comments or response to 17 April 2019. The applicant was informed that she would lose the right to appear to give evidence and present arguments if no response was received by that date.

16. On 17 April 2018, the Tribunal received a further email from the applicant as follows:

    “That me explain my situation in more detail. The owner of Fame Hair & Beauty Saloon Pty Ltd had confirmed that she is going to sponsor me, but I was not aware that she has not enough supporting documents the sponsor me. On the same time, she sponsored other applicants which I was not informed. But I know that she sponsored other applicants previously whom got permanent residency, this encourage me to go to AAT to appeal for review and the owner ensured me that she will provide all supporting documents to fight AAT. After a few months she denied sponsoring me without discussed with me. On that time, I was not in a situation to look for a second sponsor in my skill occupation. Then me and my family relocate in Northern Territory for good. Now we are residing in NT and as a resident of NT we were eligible to apply 489 visa and waiting for outcome.

    Therefore, I humble request the registrar and the rest of the board members to take the decision and I am obliged to accept that”.

17. On 17 April 2019, a Tribunal officer telephoned the applicant to confirm that she was asking the Tribunal to deal with the application on the papers, and in her absence, which the applicant confirmed. The Tribunal has therefore proceeded to deal with the matter without a formal hearing on the basis of section 360 (2) (b).

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has approved.

    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:

    ·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 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.

21. For this review, the Tribunal has had regard to the Department’s file, the Tribunal’s file and the written submissions made by the applicant as referred to above in these reasons.

22. The Tribunal is satisfied that there is no nomination of the applicant by an approved sponsor and in respect of the nominated occupation of Hairdresser, the Tribunal having refused a review of the nomination application on 21 March 2019. There is no application made in respect of that decision which is subject to appeal. The Tribunal is not aware of any other application by another sponsor which is approved, or pending approval, or in respect of the refusal of which there is a review outstanding in favour of the applicant for the nominated position.

23. Therefore, cl.187.233 is not met and as a consequence of which the Tribunal has no alternative but to affirm the Department’s decision.

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.

    Secondary Applicant

25. The secondary applicant is the spouse of the applicant and must meet the requirements of the subregulation 187.311.

26. The subregulation requires that the secondary applicant is a member of the family unit of a person (the primary applicant) who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and who has made a combined application with the primary applicant.

27. The Tribunal finds that the secondary applicant is not a member of the family unit of a person (the primary applicant) who holds a subclass 187 visa and as a consequence, subregulation 187.311 is not met.

    DECISION

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

    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.