Arafat (Migration)

[2019] AATA 3128

Arafat (Migration) [2019] AATA 3128 (21 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammad Yasin Arafat
Mrs Nusrat Jahan Saima
Master Abdullah Muadh

CASE NUMBER:  1835770

HOME AFFAIRS REFERENCE(S):          BCC2018/28055

MEMBER:Katie Malyon

DATE:21 May 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 21 May 2019 at 11:02 am

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Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – nomination application withdrawn – decision under review affirmed

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

CASES
Singh v MIBP [2017] FCAFC 105

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 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 3 January 2018.  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 2 alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.

   Background

4. In this case, the first named applicant – Bangladeshi national Mr Mohammad Yasin Arafat – is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook ANZSCO 351411.

5. The delegate refused to grant the visas on the basis Mr Arafat did not meet cl.187.233(3) of Schedule 2 to the Regulations because his prospective employer, the Trustee for the Neumann Family Trust (the Trustee), withdrew its nomination application in relation to him from the Department.  As a result, the Department refused the applicants’ Subclass 187 visa applications. 

6. On 29 March 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse their Subclass 187 visa application. The Tribunal informed the applicants that, on 28 September 2018, the Trustee withdrew its nomination application which named Mr Arafat as the nominee and, consequently, there is no approved nomination made by the Trustee in relation to Mr Arafat. As a result, the position to which his Subclass 187 visa application relates could not meet the criteria in cl.187.233 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105 (Singh’s case), this is a ‘once off’ process. 

7. Mr Arafat provided a response to the Tribunal on 8 April 2019.  In his response, he claims he is a victim of his former registered migration agent’s conduct.  He provided reference number for a complaint which he has already lodged with the Office of Migration Agents Registration Authority (OMARA) in relation to this claim: the complaint with OMARA is still pending.    

8. The Tribunal invited the applicants to a hearing on 2 May 2019.  On 29 April 2019, Mr Arafat wrote to the Tribunal advising that he is now residing in Hobart and that it would be difficult to travel to Sydney for the hearing because of his child and his wife’s pregnancy. Following communications with Mr Arafat, the Tribunal arranged for a hearing to be conducted by way of a video-link so that he may remain in Hobart.

   Hearing

9. Mr Arafat appeared before the Tribunal on 20 May 2019 by way of video-link from Hobart to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages, although the Tribunal notes that Mr Arafat used the interpreter on occasions only.

10. At the commencement of the hearing, the Tribunal outlined the law and referred Mr Arafat to the Subclass 187 visa application made by him on 3 January 2018 (a copy of which had been emailed to him by the Tribunal) in which he declares that he has provided details of the related nomination application.  The Tribunal noted that the Trustee’s nomination had been withdrawn.  It observed that it has no discretion and must apply the law for the reasons outlined in Singh’s case referred to in the Tribunal’s s.359A letter. Mr Arafat indicated his acknowledgement of the Tribunal’s observations in this regard and that, in the circumstances, the Tribunal must affirm the decision of the delegate as there is no approved nomination linked to his Subclass 187 visa application and it is a once-off process. He observed that ‘everything the Tribunal says is right because the Trustee’s nomination was withdrawn’.

11. Mr Arafat told the Tribunal that his former employer called him on 27 September 2018 and said he ‘wanted to withdraw the nomination’.  When he asked his boss why, he was told that ‘the Trustee couldn’t afford it at this time’.  His boss suggested he ‘try to find another employer’ willing to sponsor him.  As a result, Mr Arafat said he spoke with restaurant owner called Mr Gary who offered him a job as a Cook ‘on condition’ that he accepted the offer of employment ‘within 7 days’.  However, during this period, he did not receive an email from the Department or from the registered migration agent regarding the Trustee’s withdrawal of its nomination and, so, ‘the 7 days passed,: he was not sure the nomination had actually been withdrawn or whether his boss was ‘just angry about something’ (when his boss said that he wanted to withdraw the nomination). 

12. As a result, Mr Arafat said he feels that he ‘missed the opportunity then’ (to work with Mr Gary).  More recently, however, Mr Gary has again offered him another position to work as a Cook.  Mr Arafat observed that, as the holder of a Bridging A visa, he would need to leave Australia to apply for a visa to allow him the opportunity to take up Mr Gary’s employment offer.  He explained that, with his young family (his son is 2 years old and his wife is expecting another baby in mid-July 2019), leaving Australia would ‘be very difficult’ for them as well as ‘very expensive’. 

13. No evidence was provided to the Tribunal of an offer of employment from Mr Gary for Mr Arafat to work as a Cook with Mr Gary’s business.  Further, no evidence was provided of lodgement of a nomination by Mr Gary.  In the circumstances, the Tribunal provided Mr Arafat with contact details for the Legal Aid Commission of Tasmania’s offices in Hobart where he can obtain pro bono immigration advice regarding his visa options for Australia. 

14. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether there is an approved nomination in relation to Mr Arafat.

    Nomination of a position

16. Clause 187.233 of Schedule 2 to the Regulations, as applicable in this case, is set out in full in the Attachment to this decision. Essentially, it requires that that the position to which the application relates must 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 by the primary visa application as part of the current Subclass 187 visa application.  

17. 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 (emphasis added);

    ·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.

18. The Trustee’s nomination application was withdrawn from the Department. In the circumstances, as the nomination made by the Trustee for the position of Cook to which Mr Arafat’s Subclass 187 visa application relates has not been approved, it follows that he does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations. Therefore, cl.187.233 of Schedule 2 to the Regulations is not met.

19. Mr Arafat 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 stream, the Temporary Residence Transition stream.  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.

20. Since Mr Arafat does not satisfy the primary criteria for the grant of a Subclass 187 visa, the second and third named applicants - his wife Mrs Nusrat Jahan Saima and son Master Abdullah Muadh - cannot satisfy the secondary criteria for the grant of the visa.  There is no evidence before the Tribunal to indicate that Mrs Saima meets the primary requirements for grant of the visa. 

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT - Extract from the Migration Regulations 1994

    Schedule 2

    ..
    
    

    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.

    oOOo