Hayat (Migration)

[2018] AATA 5514

Hayat (Migration) [2018] AATA 5514 (14 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hassan Hayat

CASE NUMBER:  1724334

DIBP REFERENCE(S):  BCC2017/2332703

MEMBER:Mr S Norman

DATE:14 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 14 November 2018 at 11:45am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager – nomination refused – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A, 376
Migration Regulations 1994, Schedule 2, rr 1.13, 5.19(4), cls 187.233, 187.242

CASES

WZANC (No. 2) v MIAC [2012] FMCA 504

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 30 June 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).  The Department delegate’s decision was lodged with the Tribunal.

2. 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.

3. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (General) (ANZSCO: 142111). 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 stream.

4. 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 Zohha Holdings P/L as the Trustee for Zohha Family Trust, being the nomination referred to in reg.187.233(1), was refused by a delegate of the Minister.

5. The applicant appeared before the Tribunal on 25 September 2018 to give evidence and present arguments. The Tribunal also took evidence from Mr Hassan ZAHEER (being the Director of the nominator). The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant satisfies cl.187.233.

   Nomination of a position

8. 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). 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 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.  

9. On 16 August 2017, the nomination lodged by the nominator (Zohha Holdings P/L as the Trustee for Zohha Family Trust), being the nomination referred to in reg.187.233(1), was refused by a delegate of the Minister. On 16 August 2017, the Department issued a “natural justice letter” to the applicant via his migration agent. This provided him 28 days to comment about this refusal. As at the date of the Department decision, no information/comments had been received. As the nomination had been refused, reg.187.233(3) is not met. Therefore, the delegate was not satisfied the applicant met reg.187.233.

10. Next, the delegate assessed the criteria for the grant of a Regional Employer Nomination (subclass 187) visa within any other stream within the visa subclass. The delegate noted the applicant had claimed under the Temporary Residence Transition stream. Under reg.187.223 the position to which a visa application relates must have been nominated and approved under reg.5.19(3). Since the nomination did not seek to meet the requirements of and was not assessed under reg.5.19(3), applicant does not meet reg.187.223. Accordingly as the applicant had not met reg.187.233, the delegate was not satisfied the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa in the Temporary Residence Transition Stream were satisfied.

11. Next, the delegate assessed whether the criteria for the grant under the Agreement stream. However, as the position was not nominated by an employer in accordance with a Labour agreement, the applicant was not found to have met the requirements of the Agreement stream (cl.187.242).

12. The delegate then stated that as reg.187.233, 187.223 & 187.242 were not satisfied, the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa was not met. Therefore, the delegate refused to grant the applicant a Regional Sponsored Migration Scheme (subclass 187) visa.

    The post hearing s.359A letters

13. The Department lodged a s.376 Certificate with respect to the visa applicant. The Tribunal understands it has a discretion regarding disclosure in respect of documents or information that is certified under ss.376 [Part 5], and as such it is possible to comply with 359A/359AA.[1]

    [1] See WZANC (No. 2) v MIAC [2012] FMCA 504 (Lucev FM, 29 June 2012).

14. At hearing, the Tribunal then said that subject to his comments the following information may be the reason, or part of the reason, for affirming the decision under review. That being said, the gist of the s376 Certificate referred to the following: 

    ·the visa applicant paid money to obtain the sponsorship

    ·that he does not get paid by the sponsor’s business (and evidence to the contrary is fake)

    ·the visa applicant may have engaged in criminal activities in Pakistan

15. At hearing, both the visa applicant and the nominator said this information was false.

16. A post hearing s.359A letter dated 26 September 2018 (dispatched by email to the authorised recipient) was issued. The Tribunal again put to the applicant that subject to their comments, the following information would be the reason or part of the reason for affirming the decision under review. The relevant information was as follows:

    ·the visa applicant paid money to obtain the sponsorship

    ·that he does not get paid by the sponsor’s business (and evidence to the contrary is fake)

    ·the visa applicant may have engaged in criminal activities in Pakistan

17. By reply dated 8 October 2018, the applicant provided a Police Clearance Certificate from Pakistan,[2] claimed evidence of income payments,[3] and a statutory declaration dated 8 October 2018 denying all allegations.[4]

    [2] Tribunal – folio 43.

    [3] Tribunal – from folio 42.

    [4] Tribunal – folio 37 (reverse side).

18. By a second s.359A letter dated 30 October 2018, the Tribunal put to the applicant that subject to his comments, the following information would be the reason or part of the reason for affirming the decision under review. The relevant information was as follows:

    • On 30 October 2018, the Tribunal affirmed the Department's decision not to approve the nomination in relation to you made by your nominating employer (Zohha Holdings P/L as the Trustee for Zohha Family Trust)

19. The applicant was advised the above information was relevant because cl.187.233(3) requires that the nomination made in relation to him by his nominating employer has been approved. If the Tribunal relied on this information it may find that the nomination in relation to him has not been approved and consequently the decision under review would be affirmed. The applicant was invited to comment in writing by 13 November 2018. At the time and date of this decision, no reply had been received by the Tribunal.

20. That being said, based on the evidence before the Tribunal, I am not satisfied the applicant has met cl.187.233(3). Furthermore, cl.187.233 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.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Mr S Norman
    Member