Fernandes (Migration)

[2022] AATA 1921

Fernandes (Migration) [2022] AATA 1921 (24 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Noel Fernandes
Mrs Rosemary Noel Fernandes

REPRESENTATIVE:  Mr Tanveer Singh (MARN: 1173217)

CASE NUMBER:  1832894

HOME AFFAIRS REFERENCE(S):          BCC2017/1453151

MEMBER:Amanda Mendes Da Costa

DATE:24 January 2022

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 24 January 2022 at 1.18pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 21 April 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 Café or Restaurant Manager ANZSCO 141111.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because he was not the subject of an approved nomination.

6. The applicants appeared before the Tribunal on 20 January 2022 to give evidence and present arguments.  

7. The applicants were represented in relation to the review, who also participated in 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 the applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations and whether the second named applicant is a member of the family unit of a person who has met the primary criteria for the grant of the visa.

   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. Pursuant to s.359A of the Act, the Tribunal wrote to the applicant on 3 December 2021, inviting him to comment on or respond to information which it considered may be the reason or part of the reason for affirming the decision under review.  This information was that the application  for approval of the nominated position made by MADHULI ENTERPRISE PTY LTD (the nominator) was refused by a delegate of the Minister for Home Affairs.  The nominator sought a review of that decision, but it was recently affirmed by the Tribunal.[1]  The Tribunal advised the applicant about the consequences of its relying on this information in making its decision.

    [1] Decision made on 11 October 2021.

13. The Tribunal informed the applicant that any comments or response should be provided in writing by 17 December 2021.

14. On 17 December 2021 the applicant responded to the Tribunal’s invitation (in writing) in which he informed that he had no further comments or information to provide in support of his review application.

15. On 21 December 2021 the Tribunal wrote to the applicant, seeking confirmation that he was waiving any right to a hearing under the Act and consenting to the Tribunal making a decision on the information before it.   In response the applicant informed the Tribunal that he wished to rely on the documents that had been provided in support of the review application.  He further advised that if the Tribunal deemed fit to conduct a hearing in the matter, it could go ahead and schedule a hearing, as the applicant believed that the claims made by him were sufficient and all the required information had been provided to the Tribunal.  The Tribunal then scheduled a hearing in the matter.

16. During the hearing, the Tribunal invited the applicant (pursuant to s359A of the Act) to comment or respond to information which the Tribunal considered would be the reason or part of the reason to affirm the decision under review.  This information was that an anonymous informant had sent an email to the Tribunal on 22 June 2021.  In this email the informant provides details relevant to the applicant’s passport including the passport number.  The informant further informs the Tribunal that the applicant is a “fake applicant”. The restaurant where he claims to work is Vrindavan Indian located in Seymour, Victoria.  This restaurant is barely functioning and is a “portable visa café”, only for visa purposes.  If a person walks in at any time with $15,000, they will get an easy visa option without needing to work.  The Informant further advises that the applicant is currently working as a driver/subcontractor for a courier for a business under his sister’s name and has never worked in a restaurant.

17. The Tribunal informed the applicant about the consequences of its relying on this information in making its decision and gave the applicant an opportunity for further time to consider matters before providing a response to the Tribunal.  However, the applicant indicated that he did not require further time and was prepared to respond to the information without delay.

18. In response, the applicant told the Tribunal that the allegations made by the informant were “100 per cent false”. He explained that he had known the owner of the sponsor’s business whom he met in 2017 and had been employed in an earlier business operated by the owner.  The applicant was subsequently offered employment by the owner of the nominator’s business as a Restaurant Manager in its restaurant in Seymour, Victoria.  The applicant was employed in that business until the Tribunal affirmed the delegate’s decision in relation to the nomination refusal review in October 2021.  The applicant said that he could not understand how the nomination application had been unsuccessful as the nominator was operating a successful business.

19. The applicant told the Tribunal that could not understand why a person had made false allegations against him to the Tribunal.  He had arrived in Australia in 2009 to study hospitality, busines management and accounting.  He had used these skills in working in the nominator’s business and had submitted all required taxation returns and paid income tax.  He had always worked hard to support his wife and child and wanted to remain in Australia to further his career.

20. Given that the identity of the informant is anonymous and the applicant has denied the allegations made against him under affirmation, the Tribunal does not consider that the information provided is of any probative weight and does not rely on the informant’s allegations in making its decision in the matter.

21. On the basis of the evidence before it, the Tribunal finds that  the application for approval of the nominated position for the applicant, made by MADHULI ENTERPRISE PTY LTD (the nominator) was refused by a delegate of the Minister for Home Affairs.  The nominator sought a review of that decision, but it was affirmed by the Tribunal on 11 October 2021.  There is no evidence that the applicant is the subject of any other approved nomination.  This means that there is not an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased as required by cl.457.233. 

22. Therefore, cl 187.233 is not met.

23. 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.

24. Given that the applicant does not the primary criteria for the grant of a Regional Employer Nomination (Permanent) (Class RN) visa, the Tribunal does not consider that the application of the second named applicant should be reconsidered as she is not a family member of a person who has met the primary criteria for the grant of the visa.

    DECISION

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

    Amanda Mendes Da Costa
    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.