Fatima (Migration)

[2018] AATA 3234

Fatima (Migration) [2018] AATA 3234 (6 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Shadma Fatima
Mr Mohammed Azijul Hoque Mallick
Master Zishan Mallick
Master Rayyan Mallick

CASE NUMBER:  1622316

DIBP REFERENCE(S):  BCC2016/1730775

MEMBER:Alan McMurran

DATE:6 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 06 July 2018 at 6:18pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

Practice and Procedure – Request for adjournment pending judicial review of nomination – No evidence of judicial review provided – Objectives of the Tribunal – Request for adjournment refused

LEGISLATION
Adiministrative Appeals Tribunal Act 1975 (Cth), s 41
Migration Act 1958 (Cth), ss 65, 353
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

CASES
Bhandari v Minister for Immigration [2016] FCCA 2782
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna & Anor v Minister for Immigration [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 21 December 2016 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 13 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 Regional Education Manager (ANZSCO 134412). 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 (TRT) stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application lodged by Medical Training and Development Pty Ltd[1] was refused and the applicant was not the subject of an approved nomination.

   [1] D file BCC2016/1730089

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

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 meets the requirements of regulation 187. 233(3), requiring the Minister to have approved a nomination of the applicant.

   Nomination of a position

9. 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).

10. 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). In the current case, the visa application was made on 13 May 2016.

11. 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.

12. On 19 April 2018, the Tribunal made a decision in Tribunal case number 1612156, on review of an application by Medical Training and Development Pty Ltd for the nomination of a position under Regulation 5.19, in the Direct Entry stream.

13. The Tribunal found that the application on review was not successful and affirmed the decision of the Department to refuse the nomination.

14. Cl. 187.223 of Schedule 2 to the Migration Regulations requires, inter alia, that:

    (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 the Temporary Residence Transition stream; and

    (c)  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 Minister has approved the nomination.   

    (3)  The nomination has not subsequently been withdrawn.

15. Dealing with the current application, the Tribunal notes there is no application for a nomination of the applicant which has been approved by the Minister. The tribunal further notes the application for review of the nomination decision and the nomination has not subsequently been withdrawn, and the review decision as set out above affirmed the Department’s decision to refuse the nomination.

16. The Tribunal finds therefore that the applicant is not the subject of an approved nomination under cl. 187.223 of the Regulations.

17. Therefore, cl.187.223 is not met.

18. Where a criterion for the approval of an application by the visa applicant is not met, the Tribunal is not required to consider any remaining criteria for the approval of the application and it is sufficient for the disposal of the visa application to determine the issue on the basis that there is no approved nomination as set out above.

    Adjournment Request

19. Contemporaneously with the decision by the Tribunal in affirming the nomination decision by the Department[2], the Tribunal was constituted to determine the review of the visa application by the nominee, which is this review decision. This decision had to await the outcome of the determination of the review of the nomination application by the nominator, Medical Training and Development Pty Ltd. As mentioned above, the nomination decision was made by the Tribunal on 19 April 2018 affirming the Department’s decision.

    [2] Tribunal case file 1612156

20. On 6 June 2018, the review applicant requested the Tribunal by email to “wait until the Federal Circuit Court makes a decision on the nomination application before proceeding to make a final decision on the visa application review which is interrelated to the nomination that is being judicially reviewed currently.”

21. The Tribunal has given consideration as to whether this visa application decision should be deferred, pending judicial consideration of the nomination. The Tribunal notes that it does not have before it details of the judicial application or any submissions made in that regard. The email from the applicant provides no details or evidence in support of the request, other than that there is a “review” to the Federal Circuit Court.

22. In considering the issue of an adjournment or more correctly, deferring its decision, the Tribunal is mindful of its obligations to exercise any discretion in that regard on the basis of the facts and circumstances surrounding the request. The Tribunal must not exercise its discretion in a manner which is arbitrary, capricious or without regard to any submissions made by the applicant.[3] The Court has stated:

    54. The Tribunal is a statutory body and its conduct is governed by the relevant legislation (the Act). There is no statutory, or other requirement, that the Tribunal notify the applicants of when it will make its decision (see NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 223 ALR 171 at [5] per Gleeson CJ). Nor has any case law been brought to my attention that establishes such an obligation. Rather, once the Tribunal has fulfilled its statutory obligations it is open to the Tribunal to proceed to make a decision at any time, provided it exercises any discretion as to whether to proceed to a decision in a manner that is neither arbitrary nor capricious, nor unreasonable or unjust. [4]

    [3] Manna & Anor v Minister for Immigration, [2012] FMCA 28 PER Nicholls FM at par 31

    [4] Manna & Anor v Minister for Immigration

23. In the current case, the Tribunal notes that the application was first made on 7 January 2016, and more than 2 years has elapsed. In that passage of time, virtually no information has been provided by the review applicant, other than vicariously by the nominator in the related proceedings[5] and the material provided by the applicant’s representative prior to the decision record published 21 December 2016.[6] The provision of information is a relevant matter in the consideration by the Tribunal of an adjournment request.[7]

    [5] T case number 1612156

    [6] D file, f 8-11

    [7] Nicholls FM, at par59

24. The Tribunal is unable to be persuaded on the information presently available that there are any reasonable prospects of the appeal by the nominator being successful. No submissions have been made or evidence tendered in that regard.

25. The Tribunal is further mindful of its obligation that in carrying out its functions under the Act, it will pursue the objective of providing a mechanism that is fair, just, economical, informal and quick.[8]

    [8]See Bhandari v Minister for Immigration [2016] FCCA 2782 per Judge Manousaridis at par 16

26. The Tribunal has further taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[9] and Manna v Minister for Immigration and Citizenship[10] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[11] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[12] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[13] where analogous issues were discussed.

    [9] [2002] FCA 617

    [10] [2012] FMCA 28

    [11] [2013] HCA 18 (8 May 2013)

    [12] [2014] FCAFC 1 (4 February 2014)

    [13] [2014] FCA 915 (28 August 2014)

27. In the present circumstances, the tribunal is of the view that the applicant needs to do more than simply rely on the fact that an appeal to the courts has been made from the review decision on the nomination. There ought to be at least some further information, fact or circumstance upon which the Tribunal might rely to fairly and properly meet the request, while at the same time discharging its function and obligation under section 353 of the act requiring the Tribunal to act according to “substantial justice on the merits of the case”. The merits of the case have already been considered by the Tribunal in the nomination application and nothing further has come to light or been submitted since that decision.

28. The Tribunal finds there is nothing further which might prompt the Tribunal to consider on request by the party and in accordance with s.41[14], to make an order deferring its decision, or implementation of the orders otherwise determined. For these reasons, the Tribunal declines to exercise its discretion to stay the decision or its implementation[15] and the adjournment request is refused.

    [14] Administrative Appeals Tribunal Act 1975 (AAT Act)

    [15] S 41(2)\of the AAT Act.

    Secondary Applicants

29. 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.

30. The Tribunal finds that the secondary applicants, Zishan Mallick and Rayyan Mallick, are not members of the family unit of a person under r.187.311, who holds a subclass 187 visa, and therefore cl. 187.311 is not satisfied

    DECISION

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

    Alan McMurran
    Member