El Samad (Migration)

[2023] AATA 3454

El Samad (Migration) [2023] AATA 3454 (20 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ataa El Samad

REPRESENTATIVE:  Mr Paul Hense (MARN: 9895736)

CASE NUMBER:  1925734

HOME AFFAIRS REFERENCE(S):          BCC2019/503476

MEMBER:Namoi Dougall

DATE:20 September 2023

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 20 September 2023 at 12:11pm

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Importer or Exporter – failed to attend the hearing – nomination remains refused –no approved nomination – not the subject of an approved nomination –decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 65, 359, 379

Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.223

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 February 2019. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Importer or Exporter.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the nomination application lodged by Sarab Trading International Pty Ltd (the nominating business) was refused by a delegate for the Minister on 4 July 2019. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.

6. On 24 August 2023, the Tribunal wrote to the review applicants advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicants to give evidence and present arguments at a hearing 19 September 2023. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

7. No response to the hearing invitation was received and the applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were properly invited to a hearing in accordance with s 379A(5), the invitation has not been returned to sender, and that SMS reminders were sent about the hearing on two separate occasions. Given the circumstances of this matter, in particular the inevitable lack of satisfaction of a visa requirement, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

8. The applicant was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the position to which the application relates is the subject of an approved nomination.

Nomination of a position

1. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

2. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made the 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.

3. ***On 5 September 2023, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting the applicant to comment on at the hearing or respond to adverse information. The adverse information was that the applicant had applied for the Subclass 187 visa on the basis of a nomination of a position made by the nominating buisness and that on 4 July 2019, the Department had refused that nomination. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination and the Tribunal finalised the matter as a withdrawal on 1 June 2023.

4. The Tribunal’s letter also stated that if the Tribunal made the above findings, it would also find that that the nomination of the position lodged by your nominating employer and which the applicant relied on when lodging their visa application, has not been approved. If the Tribunal makes this finding, then it will also find that the applicant does not meet all of the requirements for the grant of a Subclass 187 visa, particularly cl.187.233 and the delegates decision not to grant you a Subclass 187 visa will be affirmed.

5. On 4 July 2019, the Department the Department refused the nomination of position which the applicant’s Subclass 187 visa application relates. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination and the Tribunal finalised the matter as a withdrawal on 1 June 2023. As the relevant nomination has been refused, the Tribunal must find that the position to which the application relates is not the subject of an approved nomination.

6. Therefore, cl 187.233 is not met.

7. 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

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

Namoi Dougall
Member

ATTACHMENT A

187.233(1)     The position to which the application relates is the position:

(a)nominated in an application for approval that:

(i)identifies the applicant in relation to the position; and

(ii)is made in relation to a visa in a Direct Entry stream; and

(iii)seeks to meet the requirements of subregulation 5.19(12); 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.