Farag (Migration)

[2020] AATA 1987

Farag (Migration) [2020] AATA 1987 (25 May 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr David Nessim Samaan Farag

CASE NUMBER:  1932845

HOME AFFAIRS REFERENCE(S):          BCC2017/2712588

MEMBER:  Phoebe Dunn

DATE:  25 May 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision not to grant the

applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 25 May 2020 at 10:31am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – employer’s position nomination refused – no application for review of refusal – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 Home Affairs 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 31 July 2017. 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 the Direct Entry stream, to work in the nominated position of Accountant (General) (ANZSCO 221111).

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 related nomination application lodged by Family Doctor Pty Ltd (the nominator), being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister on 30 September 2019 and as such there was no approved nomination. The applicant provided a copy of the decision with his review application.

6. The applicant appeared before the Tribunal by telephone on 14 May 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant consented to the hearing being conducted by telephone in writing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

8. 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 related nomination has been approved.

10. On 7 April 2020, the Tribunal wrote to the applicant inviting the applicant to comment on or respond to the determinative issue on review being as follows:

    a. On 30 September 2019 a delegate of the Minister for Immigration refused the nomination application by Family Doctor Pty Ltd, being the nomination application in respect of which the applicant made his Subclass 187 visa

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declaration, and that decision is not the subject of a pending review application before the Tribunal; and

b. This means that the nomination has not been approved as required under cl.187.233(3) of Schedule 2 to the Regulations.

1. The applicant responded through his migration agent on 21 April 2020, noting that the applicant was aware that there is no approved nomination and that he had made enquiries of the nominator and had been advised that they did not lodge an application for review of that decision. The applicant’s migration agent noted that the applicant was aware there was no pending review application and that the applicant had been advised of the consequences of this information.

2. By letter dated 28 April 2020, the applicant was invited to a hearing of this matter scheduled for 14 May 2020. On 13 May 2020, the Tribunal received a request for postponement of this matter direct from the applicant on the basis that: ‘I was advised that the hearing would be in 2 years time and the nomination hearing will be done first, I am in contact with the employer to get more information about what went wrong and that I will have a clearer picture in regards to the current situation to be prepared for the appeal’. By letter dated 13 May 2020, the Tribunal responded to the applicant, declining the applicant’s request, noting that the Tribunal had carefully considered the request but did not consider the applicant had provided sufficient reasons to warrant an adjournment of this matter, noting the determinative issue on review in this case, and having regard to the Tribunal’s obligation to provide a review mechanism that is fair, just, economical, informal, quick and proportionate.

3. At the hearing of this matter, the Tribunal reiterated that the determinative issue in the case is whether the related nomination application, being the nomination application referred to in cl.187.233(1) had been approved. The Tribunal noted that, as set out in the Tribunal’s letter dated 7 April 2020, in this case the nomination application made by the nominator was refused by the Department on 30 September 2019 and that decision was not appealed by the nominator. The Tribunal stated that this means that there is no pending review application before the Tribunal and as such the decision regarding the related nomination has been finally determined. The Tribunal noted the applicant’s correspondence received by the Tribunal on 21 April 2020 in which it was noted that the applicant was aware that there is no approved nomination and no pending review application and that the applicant had been advised of the consequences of this information.

4. In oral evidence at the hearing, the applicant stated that at the time he lodged his review application with the Tribunal he did not realise that the nominator hadn’t lodged a review of the decision to refuse the nomination application. The applicant stated that he has spoken to the nominator about this mistake and had spoken to his lawyer who told him there is nothing he can do about it. The applicant stated that he understood that it is now too late for the nominator to lodge a review of the decision to refuse the nomination application and he understood that this means that his Subclass 187 visa application can’t succeed.

5. The Tribunal stated that it understood the circumstances were difficult but reiterated that it did not have discretion in relation to the requirement in cl.187.233(3) that the related nomination application has been approved.

   Nomination of a position

6. 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

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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.

1. 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 r.1.13A and r.1.13B of the Regulations); 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.

2. In this case, the related nomination application by Family Doctor Pty Ltd, being the nomination application referred to in cl.187.233(1), was refused by a delegate of the Minister for Immigration on 30 September 2019 and that decision is not the subject of a review application before this Tribunal. Following careful consideration of the evidence before it, the Tribunal finds that at the time of its decision there is no evidence of an approved nomination relating to the visa applicant.

3. Accordingly, cl.187.233(3) of Schedule 2 to the Regulations, which requires that the related nomination has been approved, is not met. It follows that cl.187.233 is not met.

4. 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

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

   Phoebe Dunn
   Member

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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.

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