Ferdaous (Migration)

[2023] AATA 488

Ferdaous (Migration) [2023] AATA 488 (16 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jannatul Ferdaous
Mr Mohammad Mizanur Rahman
Ms Jarita Rahman
Ms Jariya Rahman

CASE NUMBER:  1920095

HOME AFFAIRS REFERENCE(S):          BCC2017/4720127

MEMBER:De-Anne Kelly

DATE:16 March 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 16 March 2023 at 11:46am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – cook – subject of approved position nomination – refusal of related nomination application affirmed – not appropriate to adjourn to allow preparation of another visa application – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(1), (3), 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 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 December 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 (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 visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the employer nomination made by Los Dos Hombres Pty Ltd was refused being the application referred to in cl.187.233(1).

6. The applicants appeared before the Tribunal on 28 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages however the applicant indicated that she did not require an interpreter and her responses were in context and clear indicating that she had a sound understanding of the matters being canvassed.

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 satisfies cl187.233(3) which provides as follows.   (3) The Minister has approved the nomination.

   Nomination of a position

9. 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 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.

10. 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 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.

11. The Tribunal under s 359AA of the Act advised the applicant in the hearing that following the refusal of the employer nomination by Los Dos Hombres Pty Ltd the employer lodged a review application however on 13 January 2023 the Tribunal affirmed the decision to refuse the employer nomination because the employee (the applicant) would not be employed on a full-time basis in the position for at least two years. This was based on a large debt to the Australian Taxation Office ATO which was partly settled by a loan from an unknown source on unknown terms and a further outstanding debt which the employer had “hopes” the ATO would forego.  She was advised that since there is no employer nomination approval it may be that cl 187.233(3) is not satisfied.

12. The applicant asked for an adjournment of two months to prepare for lodging another visa application. In the request for an adjournment, the Tribunal is guided by Minister for Immigration and Citizenship v Li.  Unlike Li where the adjournment was requested for a “highly specific purpose” namely a pivotal piece of evidence that would determine whether the review was affirmed or set aside; the applicant has asked on the basis that she wishes to prepare another visa application. Such a request a request is not consistent with the Courts finding and as such the Tribunal has declined to grant an adjournment.

13. The applicant was given a further 14 days to make further written submissions however no further submission was received from the applicant. It is noted that an email was received from the applicant at 11.48am following the hearing in which she said her Wi-Fi stopped working and that is why she left the hearing before the Member for which she apologised. However, it is noted that all matters were canvassed in the hearing and the applicant did not request a further hearing or make submissions indicating that she had been unable to provide the information upon which she was relying. The Tribunal considers it is reasonable to proceed to a decision on this matter.

14. There is no approved employer nomination and therefore Cl 187.233(3) is not met.

15. Therefore, cl 187.233 is not met.

16. The applicant did not request the Tribunal to consider a referral for Ministerial Intervention and has not provided evidence that would meet the eligibility criteria for such a referral.

17. 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.

18. Mr Mohammad Mizanur Rahman, Ms Jarita Rahman and Ms Jariya Rahman were secondary applicants on the application for a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa and sought to satisfy cl.187.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.187.311. This clause provides as below. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the Visa application.

    187.311
    The applicant:
    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

19. The secondary applicants made a combined application with the primary applicant and applied as the spouse and child and therefore as members of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa. Therefore, the primary applicant is not a person who holds a subclass 187 visa. The secondary applicants are members of the family unit of the primary applicant, who does not hold a subclass 187 visa. The secondary applicants therefore do not satisfy cl.187.311.

20. The secondary applicants do not meet cl.187.311 and the Tribunal affirms the decision not to grant the secondary applicants a subclass 187 visa.

    DECISION

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

    De-Anne Kelly

    
    

    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.