Chowdhury (Migration)

[2018] AATA 3583

Chowdhury (Migration) [2018] AATA 3583 (22 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shadman Saqif Chowdhury

CASE NUMBER:  1621570

HOME AFFAIRS REFERENCE(S):           BCC2016/863958

MEMBER:Karen McNamara

DATE:22 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 22 August 2018 at 1:24pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

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 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 2 March 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Café or Restaurant Manager. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

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 on 20 October 2016, the nomination by ANRR Pty Ltd, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Immigration and Border Protection.

6. As the nomination application has been refused, regulation 187.233(3) is not met. Therefore cl.187.233 is not met.

7. The applicant applied to the Tribunal on 16 December 2016 for review of the delegate’s decision.

8. The applicant appeared before the Tribunal on 23 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Abdur Rahim, General Manager of ANNR Pty Ltd. 

9. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

    Nomination of a position

12. 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.

13. 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.

14. The applicant attended the hearing on the 23 May 2018. It was a combined hearing regarding the nomination refusal. The Tribunal explained that, to meet cl.187.233, the applicant must be the subject of an approved nomination.  It explained that the review of the nomination refusal must be finalised before the decision in this case could be made.  The Tribunal advised that it would write to the applicant advising of the decision.

15. On the 2 August 2018, the Tribunal affirmed the decision refusing the approval of the nomination made by ANRR Pty Ltd, in respect of the applicant.  As the nomination has been refused, regulation 187.233(3) is not met.

16. On 3 August 2018, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by ANRR Pty Ltd which the Tribunal explained was relevant to Mr Chowdhury meeting cl.187.233(3), which requires the nomination to be approved. As the nomination has been refused, regulation 187.233(3) is not met.

17. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 17 August 2018, 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 they might otherwise have had under the Act.

18. The applicant did not respond in writing. The applicant has not provided any evidence to confirm that they are the subject of an approved nomination.

19. Having considered the evidence before it, the Tribunal finds that the applicant does not satisfy cl 187.233(3).

20. As such, the applicant does not meet an essential criterion for the grant of a subclass 187 visa. Therefore, cl.187.233 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.

    Karen McNamara
    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.