Hossain (Migration)

[2023] AATA 387

Hossain (Migration) [2023] AATA 387 (27 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammad Rokib Hossain
Mrs Sharmin Akther
Master Ohi Mohammad

REPRESENTATIVE:  Mr Parul Nanda (MARN: 1170010)

CASE NUMBER:  2216881

HOME AFFAIRS REFERENCE(S):          BCC2018/270673

MEMBER:R. Skaros

DATE:27 February 2023

PLACE OF DECISION:  Sydney

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

Statement made on 27 February 2023 at 8:48am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – related nomination application refused – nominator deregistered and no jurisdiction to review – request for referral for ministerial consideration not granted – open to applicants to make request directly – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)
Corporations Act 2001 (Cth), s 601AD(1)

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 on 31 October 2022 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 17 January 2018. 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.

5. The visa application was initially refused on the basis that the applicant did not satisfy the requirements of cl 187.213(1) of Schedule 2 to the Regulations because the delegate found that the requirements in Public Interest Criterion 4020 (PIC 4020) had not been met. The applicant applied for review of that decision. The Tribunal, differently constituted, found that the applicant had satisfied the requirement of PIC 4020 for the purposes of cl 187.213(1), but affirmed the delegate’s decision to refuse the visas on the basis that the nomination of the position was not approved.

6. The applicant sought judicial review of that decision. The Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (FCFCOA)) dismissed the application. That decision was appealed to the Federal Court of Australia (FCA). By consent, on 17 November 2021, the FCA set aside the orders and judgement of the FCFCOA. The Tribunal’s decision was quashed, and the FCA remitted the matter to the Tribunal for reconsideration according to law. On 26 September 2022, the Tribunal set aside the Department’s decision and remitted the matter to the Department for reconsideration on the basis that the applicant satisfied PIC 4020(1) for the purpose of cl 187.213(1) of Schedule 2 to the Regulations.

7. On 31 October 2022, the delegate refused to grant the visas on the basis the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the nomination in relation to the applicant had not been approved.

8. The applicants appeared before the Tribunal on 14 February 2023 to give evidence and present arguments.

9. The applicants were represented in relation to the review. The representative attended the hearing.

10. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the nomination of the position to which the application relates has been approved.

    Nomination of a position

12. 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, the nomination must have been approved.

13. The applicant applied for the visa on the basis of a nomination made by AUS Bangla International Pty Ltd. That nomination was refused on 2 April 2019. An application for review of the decision to refuse the nomination was lodged with the Tribunal, however, the Tribunal (differently constituted) found that it did not have jurisdiction to review the decision because the nominator (AUS Bangla International Pty Ltd) had been deregistered by the Australian Securities and Investment Commission (ASIC) and, by operation of s.601AD(1) of the Corporations Act 2001, had ceased to exist as a legal entity. Consequently, the nominator no longer had standing to pursue the review.

14. Regulation 187.233(3) requires the relevant nomination of the position, to which the applicant made the relevant declaration, to have been approved. The evidence before the Tribunal is that the nomination has been refused. As the associated nomination has not been approved, it follows that the applicant does cannot satisfy the requirements of cl 187.233(3).

15. In recent submissions, the representative conceded that the relevant nomination in relation to the applicant made by AUS Bangla International Pty Ltd had been refused and that the requirement in cl 187.233(3) is not met.

16. Submissions were made for the Tribunal to refer the matter to the Minister on the basis that the Department’s initial decision led to an unfair and unreasonable result, and that the family’s circumstances are unique and exceptional circumstances as provided for in the Ministerial Guidelines.

17. At the hearing, the applicant acknowledged that he could not satisfy the requirement in cl 187.233(3) because the nomination in relation to him was not approved. He said he was attempting to obtain another nomination but needed more time.

18. The Tribunal explained to the applicant that if delaying the making of its decision could potentially result in a favourable outcome on the review, it would consider doing so. It noted, however, that as he is unable to rely on any another nomination to support his application for the Subclass 187 visa, there was no utility in delaying the review. The applicant indicated he understood. For these reasons, the Tribunal informed the applicant that it would not delay the making of its decision on the review.

19. As indicated above, cl 187.233 requires that the position nominated in respect of the applicant, and against which the applicant made the relevant declaration in the visa application, must be approved. In this case, the relevant nomination was not approved, and the applicant is unable to rely on another nomination to satisfy the requirement in cl. 187.233(3)[1]. Consequently, the Tribunal finds that cl 187.233 is not met.  

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

20. In relation to request to refer the matter to the Minister, the Tribunal explained to the applicants (and their representative) that there was limited information before it which suggests that their circumstances come within the guidelines for referral to the Minister. The Tribunal noted, however, that it was open to the applicants to make a direct request to the Minister for intervention under s.351 of the Act, in which they could provide more detailed information and supporting evidence regarding their circumstances.

    Conclusion

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. The secondary applicants applied for their visas as members of the family unit of the primary visa applicant. As the decision in respect of the primary applicant is affirmed, it follows that the decision in respect of the secondary applicants must also be affirmed.

    DECISION

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

    R. Skaros
    Senior 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.