BIN ILYAS (Migration)

[2019] AATA 919

BIN ILYAS (Migration) [2019] AATA 919 (18 March 2019)

\DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr IMAD BIN ILYAS

CASE NUMBER:  1701315

HOME AFFAIRS REFERENCE(S):           BCC2016/1402329

MEMBER:Alan McMurran

DATE:18 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 March 2019 at 2:58pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Health Practice Manager – subject of an approved nomination – nomination application refused – 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 Immigration and Border Protection on 12 January 2017, to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 April 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 (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 Direct Entry stream, to work in the nominated position of Health Practice Manager

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 by the nominator, The Trustee for the Blue Crescent Trust, was refused on 11 November 2016.

6. The applicant was invited to appear before the Tribunal on 20 February 2019 to give evidence and present arguments. The applicant did not appear. The applicant did not respond to the hearing invitation from the Tribunal dated 22 January 2019, which also requested any additional material or information be provided before the hearing date.

7. The applicant was represented in relation to the review by his registered migration agent, who also did not appear for the hearing.

8. The Tribunal has elected to proceed to determine the matter on the basis of the information before it. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is the subject of a nomination approved by the Minister.

   Nomination of a position

10. 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.

11. 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

12. For consideration, the Tribunal has available to it the file from the Department and the Tribunal’s case file. The Tribunal notes that no further or other information has been provided with the application to the Tribunal.

13. The applicant is a 29 year old citizen of India. The applicant gave a history of academic attainment from university in India, being a Bachelor Degree in Science, Business or Technology. The applicant also has a Graduate Diploma from the Intech Institute of Technology at Milton.

14. The applicant arrived in Australia on 31 July 2014 as a tourist. He worked for a short period in ICT Sales on a part-time basis in Australia from November 2014, to May 2015.There is no evidence of any other employment in Australia.

15. The Department wrote to the applicant on 14 December 2016, to advise him that the nomination by the nominator had been refused and that the visa application could not be approved. The applicant was requested to comment in reply. According to the Department file, the applicant responded on 22 December 2016 asking for the application to be refused so that it “can be taken to the Tribunal”. On 12 January 2017, the Department duly refused the visa application. The applicant then sought this review by application lodged on 25 January 2017.

16. The Tribunal wrote to the applicant on 27 January acknowledging the application and inviting him to provide any further information. The applicant’s agent contacted the Tribunal by phone on 7 July 2017 inquiring as to the status of the application. The Tribunal’s officer informed the agent that there was no review of the refusal of the nomination, which had been sought but was now finalised as that application for review was lodged out of time and the Tribunal had no jurisdiction to consider that review. The agent inquired whether the refusal of the review of the nomination would affect the visa application, to which the officer responded that as an approved SBS, the nominator could lodge another nomination application.

17. On 6 December 2018, the Tribunal again wrote to the applicant a natural justice letter advising him that: 

    “It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved. Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a subclass 187 visa must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.”

18. The Tribunal letter thus informed the applicant that it was not possible for any further nomination (even if successful) to lead to the approval of this visa application on review.

19. The applicant did not respond to the natural justice letter as requested by 20 December 2018, and was then invited to attend a hearing to give evidence and present argument on 20 February 2019. The applicant elected not to attend the hearing which was then cancelled, absent his appearance. No adjournment had been sought.

20. The Tribunal has had regard to the fact the applicant has declined to provide any further information for the Tribunal to consider, other than what was contained in the initial application to the Department. The applicant has had at least 3 opportunities to do so, including a request from the Department prior to finalising its decision on the application. The Tribunal is satisfied the applicant has had a reasonable opportunity to consider the circumstances and respond. No explanation was provided for the applicant’s non-appearance at the scheduled hearing. The Tribunal also notes a considerable amount of time has passed since lodgement of the application on 25 January 2017 without any further information from the applicant for consideration, and there is nothing new for the Tribunal to consider in respect of an approved or pending nomination of the applicant, following refusal of the current nominator’s application. As a consequence, the Tribunal is unable to consider this application any further as the criterion in cl.187.233 (3) is not met.

21. 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

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

    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.