AWAIS (Migration)

[2021] AATA 1323

AWAIS (Migration) [2021] AATA 1323 (16 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad AWAIS
Mrs Navida AWAIS
Master Aoun AWAIS
Master Afan AWAIS

CASE NUMBER:  1817315

HOME AFFAIRS REFERENCE(S):          BCC2017/645555

MEMBER:Sheridan Lee

DATE:16 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 16 March 2021 at 4:28 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – no response to s.359A invitation – subject of an approved nomination – 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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 16 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 (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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 Schedule 2 to the Regulations because the nomination application made by the applicant’s prospective employer was refused.

6. The applicants were represented in relation to the review by their registered migration agent.

7. On 16 February 2021, the applicants were invited to attend a hearing via telephone on 17 March 2021 to give evidence and present arguments in relation to their case. On 17 February 2021, the applicant’s representative provided the following comments from the applicant:

   I do not have provide any further information or documents to AAT. So could you please proceed with the information in hand and AAT can make decision on the available information.

8. On 23 February 2021, the Tribunal invited the applicants to comment on or respond to information pursuant to s.359A of the Act. The particulars of the information were:

   The application for approval of the nominated position made by Ferry Holdings Pty Ltd was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but later withdrew that application for review. This means that the nominator’s application for the nominated position was not approved.

9. The letter outlined that the information was relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

10. It was also explained that the information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse the grant of the visas.

11. The invitation advised that if the comment or response was not provided in writing by 9 March 2021, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s views on the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

12. At the date of this decision, no comments, response or request for an extension had been received.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

14. 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.

15. 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 reg 1.13A and reg 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.

16. On 10 January 2017, Ferry Holdings applied to nominate Mr Muhammad Awais to work in the occupation of Cook. The nomination application was refused by the Department and the company applied to the Tribunal for merits review of that decision. Ferry Holdings later withdrew the application for review. Accordingly, the position to which the application relates is not the subject of a nomination that has been approved.

17. Therefore, cl 187.233 is not met.

18. 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.

19. As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second, third and fourth applicants do not satisfy the secondary criteria for a grant of a visa, on the basis that they are not a member of a family unit of a person who holds a Subclass 187 visa.

    DECISION

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

    Sheridan Lee
    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.