Fayz (Migration)

[2020] AATA 5304

Fayz (Migration) [2020] AATA 5304 (16 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammed Abul Kalam Fayz
Mrs Tania Fayz Nipa
Mr Arman Mohammed Fayz

CASE NUMBER:  1829527

HOME AFFAIRS REFERENCE(S):          BCC2016/3781758

MEMBER:Mary Sheargold

DATE:16 December 2020

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 16 December 2020 at 5:54pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct entry stream – related position nomination refused and no jurisdiction to review – applicants currently in third country and unable to travel because of COVID-19 restrictions – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulation 1994 (Cth), r 5.19; Schedule 2, cls 187.233, 187.311

CASE

Singh v MIBP [2017] FCAFC 105

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 11 November 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 (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 Cook.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the nomination application by Restaurant Group (Syd) Pty Ltd for the position of Cook was not approved.

6. The applicant appeared before the Tribunal by telephone on 9 December 2020 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent, but the agent did not attend the hearing.

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 there is an approved nomination.

   Nomination of a position

10. 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.

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 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.

12. On 11 November 2020, the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments in writing on information that the Tribunal considered would be part of the reason for affirming the decision under review.  That adverse information was that the application for approval of the nominated position of Cook by Restaurant Group (Syd) Pty Ltd had been refused by a delegate of the Minister of Immigration, that the delegate’s decision had been appealed to the Tribunal, but that the Tribunal had found it did not have jurisdiction in that matter.  The letter outlined that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

13. 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 25 November 2020, 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.

14. On 12 November 2020, the applicant wrote the Tribunal an email stating that he was currently in the United Kingdom and that his Australian mobile phone number was not active, and that he wished to postpone the hearing in this matter, scheduled for 9 December 2020, to a date in 2021 once the situation with Covid-19 had become “more normal”.  The Tribunal acknowledged the email and after a series of emails exchanged with the applicant, he agreed to proceed with a telephone hearing as scheduled on 9 December 2020, with the Tribunal to contact the applicant by his UK mobile telephone number.

15. At the hearing, the applicant explained that he had visited Australia with his family after his sister’s first baby was born, and after that time, decided to seek to migrate to Australia so his son could grow up with his cousins.  He told the Tribunal that he had applied for the Subclass 187 visa in 2016 and that it had been refused in 2018.  He told the Tribunal that he understood the application had been refused because the nomination application by his sponsor, Restaurant Group (Syd) Pty Ltd, had been refused.

16. The applicant told the Tribunal he was willing to accept any decision the Tribunal made in relation to his application.  He told the Tribunal that in February 2020, his wife and son had returned to the UK to visit family, and found themselves stuck there during the Covid-19 global pandemic.  He told the Tribunal that on 26 August 2020, he chose to return to the UK to be with them.  The applicant told the Tribunal that he wished to appear at the hearing to emphasise that he had made peace with not being able to migrate to Australia permanently, but that he wished to ensure any future opportunities to visit his sister and her family were not prejudiced as a result of the refusal of this visa application.  The Tribunal told the applicant that it understood his concern in this regard, but in the absence of an approved nomination from his sponsor, the Tribunal would have to affirm the delegate’s decision.  The applicant acknowledged that he understood and accepted this.

17. The nominator’s nomination application was refused by the Department, and the Tribunal found it had no jurisdiction in relation to that application. As the nomination application for the position to which the applicant’s Subclass 187 visa application relates has not been approved, it follows that the applicant does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations.

18. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

19. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, he cannot overcome his current inability to meet cl.187.233(3) in relation to his application.  The nomination by Restaurant Group (Syd) Pty Ltd was specifically linked to his visa application, and that nomination was not, and now cannot be, approved.

20. Therefore, cl 187.233(3) is not met.

21. 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.

22. Pursuant to cl.187.311, the Tribunal must also affirm the decision to refuse to grant Subclass 187 visas to the secondary applicants as they are not the member of a family unit of a person who holds a Subclass 187 visa, and there is no evidence that they meet the primary criteria in their own right.

    DECISION

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

    Mary Sheargold
    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

    (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.