Faisal (Migration)

[2022] AATA 4202

Faisal (Migration) [2022] AATA 4202 (26 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Faisal
Ms Fatima Faisal
Mr Muhammad Umar Faisal
Ms Shaheena Faisal

REPRESENTATIVE:  Mr Dimitrios Katsaros

CASE NUMBER:  2101432

HOME AFFAIRS REFERENCE(S):          BCC2018/975614

MEMBER:Nicola Findson

DATE:26 October 2022

PLACE OF DECISION:  Perth

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

Statement made on 26 October 2022 at 2:13pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Motor Mechanic (General) – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

CASES

Hasran v MIAC [2010] FCAFC 40

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 (Cth) (the Act).

2. The applicants applied for the visas on 28 February 2018. 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Motor Mechanic (General) (ANZSCO 321211).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because there was no approved nomination.

6. On 8 February 2021, the applicants applied to the Tribunal for review of the Department’s decision, and with the application provided a copy of the delegate’s decision record.

7. The applicants were represented in relation to the review.

8. On 8 September 2022 the Tribunal wrote to the review applicants pursuant to s 359A of the Act, and invited their comments on the following information that it considered would be the reason, or part of the reason, for affirming the decision under review:

   “On 21 August 2020, the Tribunal received an application for review of the decision of the Department of Home Affairs to refuse a nomination in respect of CS AUTOMOTIVE SERVICES (LAVERTON) PTY LTD. On 11 July 2022, the Tribunal found that it had no jurisdiction to review the Department’s decision to refuse the nomination. Consequently, the decision made by the Department of Home Affairs on 5 August 2020, to refuse the nomination, stands.”

   The letter indicated that the above information was relevant because the Tribunal may find that the review applicant did not meet the requirements of cl 187.233, which requires there to be an approved nomination in relation to him. It also indicated the information was relevant because cl 187.311 requires the secondary applicants to be members of a family unit of a person (the applicant) who holds a subclass 187 visa on the basis of satisfying the primary criteria for the grant of the visa.

9. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 22 September 2022, 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 he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. On 22 September 2022, the Tribunal received a letter from Mr Ajal Bansal, the applicants’ registered migration agent, indicating that the applicants had not provided any instructions in relation to the Tribunal’s invitation.

11. Also, on 22 September 2022, the Tribunal received both an ‘Appointment of Representative’ form signed by the applicant in respect of new representative, Mr Katsaros, as well as a request for an extension of time to respond to the s 359A invitation.  On 23 September 2022, the Tribunal granted the requested extension and advised that the comments were now due on 21 October 2022.  The Tribunal again advised that if the comments were not provided by this date the Tribunal may make a decision on the review without taking further steps to obtain the comments 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.

12. On 21 October 2022, Mr Katsaros wrote to the Tribunal indicating that he had received no further instructions in relation to the Tribunal’s invitation.

13. The review applicants have not provided the comments within the prescribed period, as extended, and no further extensions have been requested or granted. In these circumstances, s 359C of the Act applies and pursuant to s 360(3) the review applicants are 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.

14. The Tribunal is satisfied that its invitation to provide comments on the adverse information was correctly sent to the applicants, via their representative(s).  The invitation was not returned to sender as undeliverable mail and correspondence from the representative indicates that it was received. To date, the requested comments have not been provided and there is nothing before the Tribunal to indicate that the comments are forthcoming.  The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

15. 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

16. 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.

17. 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 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.

18. On the basis of the information before it, the Tribunal finds that at the time the applicants lodged their visa application on 28 February 2018, the applicant was the subject of a nomination application by CS Automotive Services (Laverton) Pty Ltd for the position of Motor Mechanic (General).  The Tribunal further finds that the nomination application made by CS Automotive Services (Laverton) Pty Ltd was refused by the Department on 5 August 2020, and, although CS Automotive Services (Laverton) Pty Ltd sought review of the refused nomination, on 11 July 2022 the Tribunal (differently constituted) found that it had no jurisdiction to review the Department’s decision to refuse the nomination.

19. As the nomination for the position has not been approved, the Tribunal finds that the requirement in cl 187.233(3) is not met.  It follows, therefore, that cl 187.233 is not met.

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 also finds that as the applicant does not satisfy the primary criteria for the grant of the visa, the secondary applicants do not satisfy the secondary criteria for the visa.  Consequently, they do not satisfy cl 187.311, and the decision under review must be affirmed in respect of them

    decision

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

    Nicola Findson
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.