Athaullah (Migration)

[2021] AATA 5601

Athaullah (Migration) [2021] AATA 5601 (6 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohamed Husni Athaullah

CASE NUMBER:  1827761

HOME AFFAIRS REFERENCE(S):          BCC2016/4120153

MEMBER:P. Maishman

DATE:6 October 2021

PLACE OF DECISION:  Perth

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

Statement made on 06 October 2021 at 2:26pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – office manager –  tribunal affirmed nomination application – not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 5.19, Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 6 December 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 (Cth) (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 the Direct Entry stream, to work in the nominated position of office manager (ANZSCO 512111) with the nominator employer, STARTUP CARS GROUP PTY LTD.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the nomination lodged by STARTUP CARS GROUP PTY LTD was not approved.

6. On 17 September 2021 the Tribunal wrote to the review applicant pursuant to s 359A of the Act. The Tribunal informed the applicant the application by STARTUP CARS GROUP PTY LTD for approval of the nominated position was refused by the delegate and the Tribunal had recently affirmed the decision. The Tribunal explained this meant the nominated position was not approved and this was relevant to his review because approval of the nomination was a requirement for the grant of the visa. The Tribunal explained if it found the position specified in his application was not the subject of an approved nomination he would not satisfy a requirement for the grant of the visa. That would be the reason, or part of the reason, to affirm the decision under review. The Tribunal invited the review applicant to provide comments in writing.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 1 October 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

11. 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.

12. In addition, this criterion also requires, among other things, 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.

13. In this case the applicant applied for a Subclass 187 visa based on the nomination application lodged by STARTUP CARS GROUP PTY LTD in respect of the applicant, being the nomination referred to in cl 187.233(1) of Schedule 2 to the Regulations. The nomination application was lodged with the Department on 6 December 2016. The nomination application was refused by a delegate of the Minister on 2 August 2018. Consequently, on 31 August 2018 the applicant's Subclass 187 visa was refused by the delegate on the basis that there was no approved nomination.

14. STARTUP CARS GROUP PTY LTD applied to the Tribunal for review of the decision made on 2 August 2018 to refuse the nomination application. On 16 September 2021 the Tribunal affirmed the decision to refuse the nomination application. This means the matter has been finally determined and there is no approved nomination as required under cl 187.233(3) of Schedule 2 to the Regulations.

15. Therefore, cl 187.233 is not met.

16. 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

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

    P. Maishman
    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.