GENA (Migration)

[2020] AATA 2555

GENA (Migration) [2020] AATA 2555 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr MOHAMMADSALIM ISHAKBHAI GENA
Mrs NAJAMABEN MOHAMMADSALIM GENA
Mr ABRAR MOHAMMADSALIM GENA
Mr AYAN MOHAMMADSALIM GENA

CASE NUMBER:  1805626

HOME AFFAIRS REFERENCE(S):          BCC2017/3233816

MEMBER:De-Anne Kelly

DATE:28 May 2020

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 28 May 2020 at 1:51pm           

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related position nomination refused – refusal affirmed on review – employer considering judicial review of decision to affirm employer nomination refusal – request for deferment of decision – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 376

Migration Regulations 1994 (Cth), Schedule 2, cls 186.233, 186.311

CASE

Huo v Minister for Immigration & Multicultural Affairs [2002] FCA 617

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 (the Act).

2. The applicants applied for the visas on 6 September 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 (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 Direct Entry stream, to work in the nominated position of Retail Manager ANZSCO 142111.

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 nomination lodged by Abid Australian Pty Ltd being the nomination referred to in paragraph 187.233(1) was refused by a delegate of the Minister for Immigration and Border Protection.

6. The applicant appeared before the Tribunal on 19 March 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review. The applicant gave an account of his work duties. He did not ask for an adjournment or make any other requests of the Tribunal.

7. The applicant was represented in relation to the review by its registered migration agent, Shoaib Vahora MARN: 0848555 of Vahora and Associates, Moorebank NSW. The representative attended the Tribunal hearing by telephone.

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 cl.187.233(3) which provides as follows;

   (3)      The Minister has approved the nomination.

   Certificate under s.376 of the Act

10. The Tribunal provided the applicant for the employer nomination with an s.376 allegation from an anonymous source stating that the employer had fraudulently sponsored family members on Regional Sponsored Migration Scheme (RSMS) visas and for sponsorship payment.  The employer was invited to respond to this but were advised that as these allegations are from an anonymous source the Tribunal places no weight on them in reaching a decision on the employer nomination review or the visa application review.

    Nomination of a position

11. 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.

12. 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.

13. After the delegate of the Minister refused the employer nomination, the nominator lodged an application with the Tribunal to review the decision. The Tribunal affirmed the decision on 7 May 2020 to refuse the nomination on the basis the nominator had failed to satisfy r.5.19(4) of the Regulations.

    On 13 May 2020 under s.359A of the Act, the Tribunal sent to Mr Mohammadsalim
    Ishakbhai Gena, Mrs Najamaben Mohammadsalim Gena, Mr Ayan Mohammadsalim Gena and Mr Abrar Mohammadsalim Gena an invitation to comment or respond to the information that the employer nomination review had been affirmed by the Tribunal. The letter stated that 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 and if the Tribunal relied on this information in making a decision, we may find that the position specified in the visa application is not the subject of an approved nomination. This would mean they do not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review. They were advised a response should be received by 27 May 2020 or an extension of time could be requested but the request must be made by 27 May 2020.

14. On the 27 May 2020, the registered migration agent wrote to the Tribunal stating that the employer is considering applying for judicial review of the decision to affirm the employer nomination refusal. They requested that the Tribunal place on hold the decision on the visa application refusal review until the judicial review of the employer nomination is complete.

    The Tribunal has considered this request but has decided not to place on hold the decision in this matter. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs and Manna v Minister for Immigration and Citizenship where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

    The Judge in Huo v Minister for Immigration & Multicultural Affairs (includes corrigendum dated 24 May 2002) [2002] FCA 617 (15 May 2002) at [31] stated;

    I am therefore of the opinion that the application for review of Mr Huo made to this Court must fail. The Tribunal was entitled in the exercise of its discretion to withhold from awaiting the Tribunal's decision on the JNZ application, assuming that the Act allows room for the application of conceivably relevant rules of natural justice additional to what the legislation already stipulates. As Senior Counsel for the Minister rightly contended, there was no error of law apparent or manifest in the conduct of the Tribunal below. It was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled.

15. Since the Tribunal has affirmed the employer nomination decision under review there is no approved nomination to satisfy cl.187.233(3) and the visa applicant therefore does not meet cl.187.233(3).

16. 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.

17. Mrs Najamaben Mohammadsalim Gena, Mr Ayan Mohammadsalim Gena and Mr Abrar Mohammadsalim Gena were secondary applicants who made a combined application with the primary applicant for a Regional Employer Nomination (Permanent) (Class RN) (subclass 187) (Regional Sponsored Migration Scheme) visa and sought to satisfy cl. 187.311 of Schedule 2 to the Migration Regulations 1994. On the 19 February 2018, a delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.187.311. The secondary applicant lodged an application with the Tribunal to review the decision to refuse the visa application. This clause provides as follows;

    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.

18. Mrs Najamaben Mohammadsalim Gena, Mr Ayan Mohammadsalim Gena and Mr Abrar Mohammadsalim Gena as the secondary applicants, applied as the spouse and children 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) (Regional Sponsored Migration Scheme) visa. Therefore, the primary applicant is not a person who holds a Subclass 187 visa and the secondary applicants are members of the family unit of a person, the primary applicant, who does not hold a Subclass 187 visa. The secondary applicants therefore do not satisfy cl 187.311(a) and do not satisfy cl.187.311.

19. The secondary applicants do not meet cl.187.311 and the Tribunal affirms the decision not to grant Mrs Najamaben Mohammadsalim Gena, Mr Ayan Mohammadsalim Gena and Mr Abrar Mohammadsalim Gena a Subclass 187 visa.

    DECISION

20. 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

    (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.