Faruq (Migration)

[2018] AATA 2666

Faruq (Migration) [2018] AATA 2666 (15 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Abdulla-al Faruq
Mrs Tasia Begum
Ms Nazah Faruq Ilma

CASE NUMBER:  1721816

DIBP REFERENCE(S):  BCC2016/1843699

MEMBER:Warren Stooke AM

DATE:15 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 15 June 2018 at 11:47am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) – Subclass 187 Regional Sponsored Migration Scheme – Approval of nomination – Nomination withdrawn – Change in business management – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19,,, Schedule 2 cls 187.233, 187.311

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 25 May 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411). 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 visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations following the refusal of the nominated position by the Department on 7 August 2017, and no response had been received by the applicant within the 28 day period provided by the Department to comment.

6. The applicants appeared before the Tribunal on 25 May 2018 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

8. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

9. The Tribunal confirmed that the applicant had read the delegate’s decision of 8 September 2017 and that he understood the content of the decision.

10. The applicant provided the Tribunal with an explanation, as to his understanding for the refusal of the visa application by the delegate and acknowledged that the reason was that the delegate did not accept that the applicant met the criteria required for the grant of a visa.

11. At the commencement of the hearing the Tribunal outlined to the applicant the procedural process and explained the basic tenants of the criteria for a Subclass 187 visa as set out in Part 187 to the Migration Act 1994 (the Regulations) and specifically the requirements of cl.187.233 attached to this decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this present case is whether the applicant satisfies cl 187.223, specifically cl.187.223(2).

    Nomination of a position

14. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

15. 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.

16. As a threshold matter, the Tribunal asked the applicant, if the nominating employer had discussed the status of their sponsorship nomination with the applicant. The applicant explained to the Tribunal that he had been employed by the nominating sponsor as a Chef and that the business had changed hands during that employment period and he is still working with the successor. In this regard, the applicant stated that he commenced work in April 2017 and that he and his wife had a child on 9 July 2017. He stated that all matters pertaining to the application were managed by the migrant agent.

17. The applicant stated that he has worked more than 50 hours per week, including 7 days in a row. He stated that he had an understanding with the previous owner of the business that if you do me a favour, I will do you a favour. Evidence was provided that this arrangement was not embraced by the new owner, who allegedly only wanted to employ Australian staff.

18. The applicant enquired of the new owner, whether he intended to continue to support the application for a sponsored position and the new owner, on the evidence, stated “I am not going ahead with you”.

19. The applicant advised the Tribunal that he is now working with the Toorak Hotel and City Cooper’s Inn, as a sous chef.

20. The applicant stated to the Tribunal that he had an option, which comprised of engagement in Regional employment, but this would require three years’ experience, which he currently can’t comply with under the new rules.

21. The applicant stated that he did not want to go back to his home country, as it was not in a good situation.

22. The applicant stated that he has completed Certificate IV in Cookery and has completed his apprenticeship. He also confirmed that he had had advice from his lawyer who stated that he “can’t stay” and that he “must have 2 to 3 years’ experience, that is the problem”

23. The applicant gave evidence that the nominated sponsor withdrew the application because of the change in management and that they wanted all Australian citizens.

24. The applicant, whose home country is Bangladesh, has been in Australia for 9 years and has significant family in Australia.

25. The applicant expressed considerable emotion that he had been used all summer by the nominating sponsor with 70 hours of work and having only been paid for 40 hours, with the proviso that the applicant would be given time in lieu.

26. The Tribunal recognises that the applicant has had a change in circumstances, as a consequence of the business change in management and the applicant acknowledged in the evidence that he currently does not have a sponsor for the nominated position. As such, the Tribunal is satisfied on the evidence that the applicant is not capable of satisfying cl.187.233 following the withdrawal of the sponsors’ application on 16 April 2018.

27. Therefore, cl.187.233 is not met.

28. 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.

    Secondary applicants

29. The delegate also refused visas to the secondary applicants, who are included in the application.

30. There is no claim or any evidence before the Tribunal that the remaining applicants meet the primary criteria for the grant of the visa. In addition, to meet clause 187.311, the secondary applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 187 visa. As the applicant does not satisfy the primary criteria for a subclass 187 visa, or any other subclass, the Tribunal finds that the secondary applicants also do not satisfy clause 187.311 and, therefore, the criteria for a subclass 187 visa, or any other subclass.

    DECISION

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

    Warren Stooke AM
    Member

    
    

    Attachment – Extract from the Migration Regulations 1994
    
    

    Schedule 2

    Part 187

    …

    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.