Didi (Migration)

[2019] AATA 920

Didi (Migration) [2019] AATA 920 (18 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmed Didi

CASE NUMBER:  1723966

HOME AFFAIRS REFERENCE(S):           BCC2016/2067900

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 12:13pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Customer Service 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 14 September 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 16 June 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 Customer Service 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 applicant was not the subject of a nomination approved by the Minister. The applicant lodged this application for review on 4 October 2017.

6. The applicant was invited to appear before the Tribunal on 20 February 2019 to give evidence and present arguments. 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. The Tribunal has elected to proceed to determine the matter on the basis of the information before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. The applicant is a 39-year-old citizen of the Maldives who arrived in Australia on a student visa on 17 April 2015. The Department’s record shows that the applicant departed Australia on 26 May 2017 while on a bridging visa, and has not returned.

10. The applicant was nominated for the position of customer service manager by Sunday International Health Development Pty Ltd, which nomination was refused by the Department on 9 March 2017.

11. The applicant has obtained qualifications in tourism Management overseas in the Maldives, his highest qualification being a Bachelor of Business in Tourism Management from the Maldives National University.

12. The applicant also has a working history in hospitality overseas, over a decade from 1996 up to and including the date of the visa application. The applicant was granted a bridging visa 10 February 2017.

    Nomination of a position

13. 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.

14. 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

15. The applicant has submitted no further information in support of this review application, and relies upon the material already available on the Department file. In considering this review, the Tribunal has had regard to electronic documents from the Department file and the Tribunal’s case file. The Tribunal notes a copy of the decision record was lodged with the application for review.

16. The Tribunal initially corresponded with a representative, Mr Do An, who was contacted by telephone on 9 October 2017. The representative told the Tribunal officer that he was “not familiar with this applicant”. The representative called back the same day and confirmed “this is an applicant that we are going to represent”. The Tribunal notes that the application for review lodged with the Tribunal was purportedly signed by the representative on a date (illegible) in October 2017. The application also purports to be signed by the applicant in person on 4 October 2017.

17. The tribunal wrote to the applicant on 9 October 2017 acknowledging the application and inviting further information. The Tribunal again wrote to the applicant on 6 December 2018, requesting information from the applicant to be provided by 20 December 2018. The Tribunal letter informed the applicant “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.” The applicant was invited to provide information “if the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review” by the due date.

18. The applicant did not respond to the Tribunal’s correspondence, and he was sent an invitation to attend a hearing, by Tribunal letter dated 22 January 2019. The invitation included the name of the representative.

19. The representative responded on 22 January 2019 by email advising that “I am not Mr Didi’s RMA. Further I was unfairly dismissed by the migration agency, notorious agency, Goldman Pintex is in June 2018.” Mr An further states “I have no idea who Didi is, nor do I know any of application he made and when.”

20. The Tribunal then wrote directly to the applicant on 23 January 2019, informing him the nominated representative (Mr Do An) and his agency “do not represent you in this review”. The applicant was invited to appoint a representative or change his contact details, and copies of the relevant forms were attached. A copy of that correspondence was also emailed to the representative.

21. The Tribunal received no further information or any response from the visa applicant, who did not appear at the hearing.

    Findings

22. On the information available, the Tribunal finds that the nomination by the nominator for the position of customer service manager was refused by the Department on 9 March 2017. The refusal is not the subject of an application for review.

23. The Department wrote to the visa applicant on 14 September 2017 notifying him of the refusal. Other than for lodgement of this review application, the Tribunal has received no further or other information from the visa applicant or anyone acting on his behalf, except for the information provided by the representative and referred to above. It may be that the visa applicant as a consequence may have some action against the representative or the agent acting previously, however that is a matter for the visa applicant and does not affect the outcome of this review.

24. The Tribunal further finds that the applicant has not responded to requests for information or to any of the communications concerning the hearing from the Tribunal.

25. The Tribunal finds that the applicant is not the subject of a nomination for the occupation of customer service manager that has been approved by the Minister.

26. Therefore, cl.187.233 is not met.

27. 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

28. 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.