Bibi (Migration)

[2020] AATA 4543

Bibi (Migration) [2020] AATA 4543 (20 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sajida Bibi
Master Syed Mujtaba Ali Shah
Mr Syed Majid Al Shah
Miss Syeda Samarah Ali Bukhari
Miss Sania Ali Bukhari Syeda

CASE NUMBER:  1909687

HOME AFFAIRS REFERENCE(S):          BCC2017/919535

MEMBER:Antonio Dronjic

DATE:20 October 2020

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 20 October 2020 at 3:45pm

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

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 8 March 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 Direct Entry stream, to work in the nominated position of Office Manager. The delegate refused to grant the visas because the first named applicant did not meet cl.187.233 of Schedule 2 to the Regulations as the position to which the application relates had not been approved at the time of the delegate's decision.

5. The applicants applied for the review of the departments’ decision on 17 April 2019 and with the review application submitted a copy of the primary decision record.

6. By letter dated 5 October 2020, and in accordance with section 359A of the Act, the Tribunal invited the applicants to comment on or respond to information that it considered would be the reasons, or part of the reason, for affirming the decision under review.

   The particulars of the information were:

   ·Your visa applications were refused by the Department on 4 April 2019, because the nomination mentioned in cl.187.233 that was lodged by Black Diamond Protection Pty Ltd in respect of the first named applicant has not been approved.

   ·The decision not to approve the nomination by Black Diamond Protection Pty Ltd was made by the Department on 20 February 2019.

   ·Black Diamond Protection Pty Ltd applied for review of this decision to this Tribunal on 8 March 2019. On 13 February 2020, the Tribunal decided that it does not have jurisdiction to review the application lodged by Black Diamond Protection Pty Ltd as this company has been deregistered and has ceased to exist as a legal entity.

   This 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 you the grant of a subclass 187 visa. This is because one of the criteria contained within subclass 187, namely clause 187.233 requires that the nomination was approved by the Minister and that nomination has not subsequently been withdrawn.

   If the Tribunal were to rely on this information, the Tribunal would accordingly be required to affirm the decision of the delegate on the basis that the first named applicant does not meet the criteria contained within clause 187.233(3).

   This information is relevant to the second, third, fourth and fifth named review applicants because cl.187.311 which prescribes that the secondary applicants meet the requirement of this subclause if the applicants are members of the family unit (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 they made a combined application with the primary applicant.

   Accordingly, if the first named review applicant is not a holder of a subclass 187 visa, the secondary applicants will not be able to meet cl.187.311.

7. The invitation was sent to the applicants’ nominated address provided in connection with the review and advised that, if the comments on or response to information was not provided in writing by 19 October 2020, or if the request for extension of time to provide comments on or response to the information is not received by the Tribunal on or before 19 October 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments on or response to information and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicants have not provided comments on or response to information or requested an extension of time to do so. 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.

9. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicants additional time in which to provide comments on or response to the information contained in the Tribunal letter of 5 October 2020.

10. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

11. The Tribunal considered whether, in the circumstances of this case, the applicants’ comments on or response to the information contained in the Tribunal’s s359A letter are likely to be forthcoming, whether the applicants had a fair opportunity to provide comments on or response to the information and the significance of the information to the applicants.

12. In this case the Tribunal wrote to the applicants under subsection 359A of the Act inviting them to provide comments and/or or response to the Tribunal letter of 5 October 2020. The Tribunal notes that the applicants have had the benefit of representation from a registered migration agent to assist with their review application. Yet, neither the applicants nor their representative provided comments and/or or response within the prescribed periods set for this purpose.

13. The Tribunal has had regard to the fact that the visa applications were refused by the Department on 4 April 2019, because the first named applicant was unable to meet the cl.187.233 ((3) which requires that the Minister has approved nomination. The applicants submitted a copy of the primary decision record with the review application. The applicants were aware of the reasons for the delegate’s’ decision for more than 18 months.

14. The Tribunal note that, if the applicants are not granted (Permanent) (Class EN) visas, they may be required to depart Australia. There is nothing to prevent the applicants from re-applying for a visa once the first named applicant finds the new employer willing to nominate the applicant for the position within their business.

15. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review and a fair opportunity to provide their comments on or response to information contained in the Tribunal letter. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. 

16. 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

17. 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.

18. 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.

19. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 187.233 lodged by Black Diamond Protection Pty Ltd on behalf of the first named applicant, has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that the first named applicant does not meet the requirements of clause 187.233 at the time of its decision.

20. 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.

21. The Tribunal must also affirm the decision not to grant the second, third, fourth and fifth named review applicants a subclass 187 visa as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 187 visa, and there is no evidence that the secondary applicants meet the primary visa criteria for this subclass in their own right.

    DECISION

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

    Antonio Dronjic
    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.