Hossain (Migration)

[2019] AATA 6911

Hossain (Migration) [2019] AATA 6911 (14 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

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

CASE NUMBER:  1909879

HOME AFFAIRS REFERENCE(S):          BCC2018/270673

MEMBER:Jennifer Cripps Watts

DATE:14 October 2019

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 14 October 2019 at 6:07pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – position nomination refused and no jurisdiction to review – sponsoring business not operating at time of nomination and visa applications, and company later deregistered – false or misleading information – applicant had no knowledge of business’s closure and believed position was genuine – information not false or misleading – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 360

Migration Regulations 1994 (Cth), r 5.19; Schedule 2, cls 187.213, 187.233; Schedule 4, PIC 4020

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 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 (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.  The nominating company was Aus Bangla International Pty Ltd (Aus Bangla) and the position was in Tasmania at a restaurant called The Swingin Anchor Café. 

5. The delegate refused to grant the visas because the applicant did not meet cl.187.213(1) of Schedule 2 to the Regulations because he did not satisfy one of the character requirements, Public Interest Criteria (PIC) 4020, contained in Schedule 4 to the Regulations, because the delegate found he had given to the Minister, with his visa application, a bogus document or information that is false or misleading in a material particular.

6. As required by s.360 of the Act, on 30 August 2019, the Tribunal sent the applicant a written invitation to attend a scheduled hearing on 2 October 2019 and, in the invitation, gave details of the issues arising.  The applicant was informed of the following:

   ‘It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.

   Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review.  If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination the decision to refuse to grant you a Subclass 187 visa must be affirmed.  Lodging a new nomination application will not enable you to meet the criteria for the visa.  However, this is a matter for the presiding Member to determine.’

7. The information in the letter put the applicant on notice of another issue on review, that it appeared he could not meet cl.187.233 that requires there is an approved nomination.

8. On 11 September 2019, the applicant responded that he, the secondary applicants and the migration agent would be attending the scheduled hearing.  In the hearing invitation, the applicant was advised that he should provide all documents he intends to rely on to show he meets the criteria for the grant of the visa, including information relating to whether he has an approved nomination or one pending, and any information about changes to his circumstances at least seven (7) days before the hearing date. 

9. The applicants appeared before the Tribunal on 2 October 2019 to give evidence and present arguments.  The applicant’s wife, the second-named applicant, elected not to give oral evidence.

10. The applicants were represented in relation to the review by their registered migration agent, Mr Paul Nanda, Migration Agent Registration Number 1170010.  Mr Nanda was also the applicant’s migration agent at the time of application.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed because the applicant does not meet cl.187.233 of Schedule 2 to the Regulations.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant is the subject of a position nominated under r.5.19 of the Regulations.  The applicant’s visa was refused by the delegate because he did not meet cl.187.213, because he did not satisfy the character requirements of PIC 4020.  The Tribunal informed the applicant in writing that another issue on the review had arisen, that being that it appeared he could not meet cl.187.233 because he does not have a nomination.

    Nomination of a position

13. 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.

14. On 18 September 2019, the Tribunal sent the applicant a letter containing adverse information.  Particulars were given:

    ‘Your visa was refused because you did not meet cl.187.213 because you did not satisfy Public Interest Criteria 4020. 

    A further issue that has arisen on the review is that it appears that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. 

    When you lodged your visa application on 17 January 2018, you identified as the sponsoring company, Aus Bangla International Pty Ltd in Stanley, Tasmania (Aus Bangla). Their nomination relating to your visa application was refused on 2 April 2019 and Aus Bangla lodged an application for review with the Tribunal.

    On 29 May 2019, the Tribunal (differently constituted) made a decision that it did not have jurisdiction to review the decision to refuse the nomination. This was because information from the Australian Securities and Investments Commission (ASIC) registered showed that Aus Bangla was deregistered on 7 August 2018 and their registration had not been reinstated. Because Aus Bangla had been deregistered, they did not have standing to apply for, or continue with, an application for review.

15. In the s.359A letter, the applicant was invited to comment on or respond to the information, by 2 October 2019 (the day of the scheduled hearing), and informed that subject to his comments or response this would be the reason, or a part of the reason, for affirming the decision under review. 

16. Relevant to this review, the criterion includes that the nomination has been approved by the Minister.

17. A written response was provided by Mr Nanda, the applicant gave his oral evidence at the hearing and Mr Nanda also made oral submissions.  The applicant conceded that he does not have a nomination relating to the Subclass 187 visa that is the subject of the review.  That the applicant does not meet cl.187.233 is not in dispute.

18. For the reasons given, cl.187.233 is not met.

    PIC 4020

19. All primary criteria must be satisfied at the time a decision is made on the application and at least one member of the family unit.  For an applicant applying in the Direct Entry stream, the criteria in Subdivisions 187.21 and 187.23 are the primary criteria.

20. The Tribunal has made a finding that the applicant does not meet cl.187.233 and he does not therefore satisfy the primary criteria.  There has been no claim made or evidence provided that indicates a member of his family unit meets the primary criteria.

21. Notwithstanding that the applicant does not meet the requirements of cl.187.233, and cannot therefore satisfy the requirements for the grant of the visa, the Tribunal, at the request of the applicant, has reviewed the decision made by the delegate and considered whether the applicant meets cl.187.213(1) which requires, relevantly, that ‘…the applicant satisfies public interest criteria … 4020 …’.

22. It was explained to the applicant that he must meet all the primary criteria for the grant of the visa and that if he does not meet cl.187.233 then there may be no utility in reviewing his matter against the other primary criteria.  He submitted the delegate’s decision is wrong and that he wants a favourable decision made so he will not be subject to a three year exclusion period, so he can apply for another visa.  The applicant was told that the Tribunal had not yet made a decision about whether or not he meets PIC 4020 and that he should be aware that the decision could be unfavourable to him.  He indicated he understood.  The facts and matters surrounding the applicant being found by the delegate not to meet PIC 4020 were discussed at the Tribunal hearing when the applicant gave oral evidence and also in oral submissions by Mr Nanda.  The Tribunal has considered the detailed written submissions relating to the delegate’s decision finding that the applicant did not meet PIC 4020. 

23. The Tribunal notes that in the delegate’s decision it is stated that ‘…the nominator did not lodge the application and had no intention to employ you in the position’.  This is incorrect, as department records indicate that the nominator did lodge an application, on 17 January 2018.  It was discussed with the applicant at the hearing and confirmed that it was subsequently refused and that Aus Bangla applied for review and a No Jurisdiction decision was made (on 29 May 2019) on the basis that by then the company was deregistered and not lawfully operating.

    The nomination and visa applications

24. Mr Nanda confirmed at the hearing that he has represented both Aus Bangla and the applicant from the Department applications through to Tribunal review.

25. Aus Bangla lodged an online Application for Employer Nomination in the Regional Sponsored Migration Scheme on 17 January 2018.

    In the delegate’s decision, relying on information gathered by Australian Border Force (ABF) when they conducted a site visit to Aus Bangla’s restaurant in Tasmania in August 2018, they were satisfied that Aus Bangla had been closed and not operating since at least May 2018 and that there had been a ‘for sale’ sign posted at the premises for at least a year.  Aus Bangla was deregistered by ASIC on 7 October 2018 and the applicant was informed by the Department in their procedural fairness letter sent in February 2019.  Despite a claim by the applicant, in response to a procedural fairness letter, that the sponsor intended to apply for re-registration of the business, it was confirmed at the hearing that this has not occurred.  In addition, the Tribunal was told by Mr Nanda at the hearing that the director of Aus Bangla remains offshore and is uncontactable. 

    Written submissions provided to the Tribunal

26. In summary, the applicant signed an employment agreement with Aus Bangla on 8 November 2017, which would commence on approval of the applicant’s visa.  Aus Bangla applied for RCB certification and the position was certified by RCB on 28 December 2017.  A nomination application was lodged a few weeks later, on 17 January 2018, nominating the applicant in the position of Café or Restaurant Manager.  On the same day, the applicant lodged his Subclass 187 visa application that is the subject of this review and in the declarations indicated that he understood the visa may be cancelled under certain conditions, including if employment is not commenced with six months and that he must not provide bogus documents or false or misleading information.

27. At the time of application, 17 January 2018, Aus Bangla had lodged a nomination application relating to the applicant’s Subclass 187 visa that is the subject of this review and the company was registered, with an ABN. 

28. It is submitted that the applicant, at the time of application, did not know that Aus Bangla would cease trading or be deregistered while the nomination and visa applications were being processed.  Following an ABF investigation into Aus Bangla, including a site visit by ABF to Aus Bangla’s restaurant in Tasmania in August 2018, where the nominated position was to be located, it was confirmed that Aus Bangla was deregistered on 7 October 2018 and that their ABN was cancelled on 26 November 2018, which the applicant points out, in support of his claim, were events that occurred on dates after he lodged the visa application (earlier that year, in January 2018). 

29. For these reasons, the applicant’s claim is that because the declarations in his application (January 2018) were made well before the ABF site visit (August 2018) and Aus Bangla’s deregistration by ASIC (October 2018), his declarations were not false or misleading.  He said he had been interviewed for the position and nominated by Aus Bangla but had not ever been to Tasmania and was only planning to go there if the visas were granted.  Relevantly, for this reason, he said he had not seen the business operating, or not operating, at any time.

30. The adverse information about the deregistration by ASIC of Aus Bangla was put to the applicant by the Department in writing on 13 February 2019.  He responded on 13 March 2019, including advice to the Department that he would not be withdrawing his visa application and said that Aus Bangla intended to re-register their ABN and re-open the business and they would still require him to work there.  A written statement from a director of Aus Bangla was provided and indicated, essentially, that they were in the process of re-registering the business and that they did not wish to withdraw the nomination.

31. The visa application was made in January 2018 and, on the basis of the ABF findings, the Tribunal is satisfied that a ‘for sale’ sign had been posted at Aus Bangla’s restaurant in Tasmania since at least August 2017 and, from no later than May 2018 the premises were empty, containing no furniture or fixtures, the delegate found that the applicant had provided false or misleading information..  Whether or not the applicant knew that Aus Bangla would cease operating the business a few months after he made the visa application, there is no evidence before the Tribunal that, even though the business was closed from May 2018, in January 2018 the applicant:

    a.Did not intend to commence employment in the nominated occupation, relevantly, after the visa was granted; or

    b.Knew or was aware at the time of application that the employment that was going to be undertaken by him was not genuinely available.

    The refusal of the nomination by Aus Bangla

32. The nomination application, lodged under the Regional Sponsored Migration Scheme (RSMS), was refused on 2 April 2019, essentially because the business was not operating and did not therefore satisfy the requirement that there was a need for the nominator to employ a paid employee to work in the position under the nominator’s control: cl.5.19(4)(h)(ii) of Schedule 2 to the Regulations. At that time, Aus Bangla had not been re-registered by ASIC (and remains de-registered at the time of this decision). Aus Bangla applied for review of the decision and, as mentioned earlier, in May 2019 the Tribunal found it had no jurisdiction to review the decision not to grant the nomination.

    The delegate’s refusal decision of the applicant’s related Subclass 187 visa

33. The applicant was notified of the refusal of the visas on 2 April 2019 because the delegate found the applicant did not satisfy PIC 4020, because he was found to have given a bogus document or false or misleading information in relation to the application for the visa.  This was on the basis, essentially, that in his visa application made in January 2018, he answered ‘yes’ to questions in the declaration in the online form that, essentially, he intended to commence employment with the sponsor once the visa was granted.

34. It was submitted that some of the information in the delegate’s decision was incorrect.  In particular that it is stated, on page 3 of the delegate’s decision, that ‘…the nominator did not lodge the application…’.  The Tribunal has already addressed this issue, both at the hearing and in this decision.  Aus Bangla did lodge a nomination application that was refused and found not to be reviewable by the Tribunal.

35. The Tribunal finds that at the time of the visa application (17 January 2018), Aus Bangla was, on the available evidence, still registered by ASIC and lawfully operating.  The business was registered on 1 September 2017 and was not deregistered by ASIC until October 2018.  In those circumstances, there is no verifiable evidence to contradict the applicant’s claim that in January 2018 he believed the position was genuine and that he intended to commence working in the nominated position for the sponsor when his visa was granted.  The Tribunal is satisfied that the applicant did not provide a bogus document or false or misleading information relating to his visa application.

36. For the reasons given, cl.187.213(1) is met.

37. For the reasons given earlier in this decision, cl.187.233 is not met.

38. 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.

    Secondary Applicants

39. As the Tribunal has found that the applicant does not meet the Subclass 187 primary criteria and has affirmed the decision to refuse the applicant’s visa, it must also affirm the decision to refuse the visas of members of his family unit included in the application, the secondary applicants.

    DECISION

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

    Jennifer Cripps Watts
    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.