Hussain (Migration)
[2024] AATA 684
•26 February 2024
Hussain (Migration) [2024] AATA 684 (26 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Arif Hussain
Ms Faiza BatoolREPRESENTATIVE: Mr Kris Ahn
CASE NUMBER: 2001372
HOME AFFAIRS REFERENCE(S): BCC2019/5574108
MEMBER:W Frost
DATE:26 February 2024
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
Statement made on 26 February 2024 at 3:41pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Customer Service Manager – could not delay its decision for external processes to occur – tribunal affirmed nomination application – applicant does not have an approved nomination that concerns him – decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 359, 360Migration Regulations 1994, rr 1.13, Schedule 2, cls 187.233, 187.311
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of decisions 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) (Act).
The applicants applied for the visas on 5 November 2019. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.
In the present case, the first named applicant (Applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Customer Service Manager’ with Greenultimate Pty Ltd (Nominator). The related nomination was made by the Nominator on 5 November 2019.
On 6 January 2020, the delegate refused to grant the visas because the Applicant did not meet cl 187.233 of Schedule 2 to the Regulations in circumstances where the Nominator’s nomination for the nominated position of ‘Customer Service Manager’ was refused by a delegate of the Minister on 23 November 2019.
The Applicant initially appeared before the Tribunal on 29 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Warnie Athauda, the National Manager of the Nominator.
The applicants were represented in relation to the review at the first hearing on 29 August 2023, but their representative did not appear at the subsequent hearing held on 22 February 2024 in relation solely to the applicants’ application for the visas.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the Applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations.
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, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.
In addition, this criterion also requires that:
·the person who will employ the applicant is the person who made the 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.
The nomination for the position of ‘Customer Service Manager’ made by the Nominator was refused by the Department and that decision was affirmed by the Tribunal on 30 November 2023, following a combined hearing on 29 August 2023 regarding the nomination for the position and the Department’s subsequent refusal of the applicants’ visa applications.
Following the Tribunal’s decision of 30 November 2023 to affirm the decision refusing the nominated position, this information was put to the applicants by the Tribunal pursuant to s.359A of the Act by way of a letter dated 1 December 2023, which relevantly stated as follows:
I am writing in relation to your application for review of the decisions by a delegate of
the Minister for Home Affairs (Minister) on 6 January 2020 to refuse to grant the
Regional Employer Nomination (subclass 187) visa. The application for review was
made by you on 26 January 2020 to the Administrative Appeals Tribunal (Tribunal).In conducting the review, the Tribunal is required by section 359A of the Migration Act
1958 (Migration Act) to invite you to comment on or respond to certain information
which we consider would, subject to your comments or response, be the reason, or a
part of the reason, for affirming the decision under review.Please note, however, that we have not made up our mind about the information.
The particulars of the information are that on 30 November 2023, the Tribunal affirmed
a decision made by a delegate of the Minister to refuse the application for approval of
the nomination of a position in Australia made by Greenultimate Pty Ltd under r.5.19 of
the Migration Regulations 1994 (Regulations).The information before the Tribunal is relevant to the review because the Tribunal may
find that, as a result of the above-mentioned decision, clause 187.233(3) of Schedule
2 of the Regulations is not satisfied in relation to your application. Clause 187.233(3)
requires that there is an approved nomination of the position. Given the Tribunal’s
decision on 30 November 2023 in the nomination application by Greenultimate Pty Ltd,
it appears that the nomination of the position to which your application relates, has not
been approved.Subject to your comment and response, if the Tribunal relies on this information, it may
find that clause 187.233(3) of the Regulations is not satisfied and this would be the
reason, or a part of the reason, for affirming the decision under review to refuse your
application for approval of a Regional Employer Nomination (subclass 187) visa.You are invited to comment on or respond to the above information in writing.
Your comments or response should be received by 15 December 2023. If the
comments or response and the information are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response and the information by 15
December 2023, you may ask us for an extension of time in which to provide the
comments or response. If you make such a request, it must be received by us by 15
December 2023 and you must state the reason why the extension of time is required.We will carefully consider any request for an extension of time and will advise whether
or not the extension has been granted.If we do not receive your comments or response within the period allowed or as
extended, we may make a decision on the review without taking any further action to
obtain your views on the information. You will also lose any entitlement you might
otherwise have had under the Migration Act to appear before us to give evidence
and present arguments. [emphasis in original]On 15 December 2023, the applicants requested a two-week extension of time to comment or respond to the Tribunal’s aforementioned correspondence.
On 18 December 2023, the Tribunal granted the applicants two additional weeks to provide any comment or respond to the Tribunal’s letter of 1 December 2023.
On 29 December 2023, the applicants requested a further two-week extension of time to comment or respond to the Tribunal’s aforementioned correspondence.
On 4 January 2024, the Tribunal wrote to the applicants and relevantly noted that:
Your request for a further extention [sic] of time has been forwarded to the Member to be considered. However, as the Member is currently leave, your request will be considered on or after 15 January 2024 once the Member has returned from leave.
On 15 January 2024, the Tribunal wrote to the applicants relevantly as follows:
On 29 December 2023, we received a request for a further two-week extension of time to provide comments or a response.
In circumstances where this request was not able to be determined until today, the Member has agreed to grant a three-week extension of time from 29 December 2023. That is, the comments or response must now be received by this Friday the 19 January 2024.
If we do not receive your comments or response by 19 January 2024, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments. [emphasis in original]
On 19 January 2024, the applicants requested what they referred to as a ‘final two-week extension’ of time to provide any comment or information in response to the Tribunal’s letter of 1 December 2023.
On 22 January 2024, the Tribunal wrote to the applicants relevantly as follows:
On 1 December 2023, we sent you an invitation to comment on or respond to information.
On 15 December 2023, we received a request for an extension of time to provide the comments or response. The Member agreed to grant an extension of time until 29 December 2023.
On 29 December 2023, we received a request for a further two-week extension of time to provide comments or a response.
On 15 January 2024 we sent you an invitation to comment on or respond to information by 19 January 2024.
On 19 January 2024 we received a request for a final two-week extension of time to provide the comments or response.
The Member has considered your request carefully and has agreed to grant a final two-week extension of time. The comments or response must now be received by 2 February 2024.
If we do not receive your comments or response by 2 February 2024, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments. [emphasis in original]
On 2 February 2024, the applicants wrote to the Tribunal relevantly as follows:
No matter what explanation or evidence I give, it seems that my visa will not be approved. Because my nomination has been refused, which is the only answer I received after consulting with several lawyers.
…
I kindly request a small favor from the Respected Member to delay their decision by one month. This additional time would be more than enough for me to get the nomination approved and apply for the 482 visa. Unfortunately, we cannot challenge the decision made by Respected Member Frost in court, as he has been very kind and generous, providing us with a fair trial and granting us numerous extensions. We have been in Australia for almost 10 years now, and it has become our home. Once again, I humbly request the Respected Member to delay their decision until I have the opportunity to submit my application for the 482 Skill shortage visa. This visa would allow me to continue working in Australia and support my wife as she completes her nursing studies. Also, we have gathered all the required documents and are prepared to submit them as soon as possible.
…
I understand that the Respected Member has to make decisions based on the information provided and the relevant laws and regulations. However, I kindly request their understanding and compassion in considering the difficult circumstances my wife and I have faced. We have always abided by the laws of this country and have strived to contribute positively to society.
I sincerely hope that the Respected Member will grant my request for a one-month delay in their decision. This additional time will allow me to submit my application for the subclass 482 visa and provide the necessary supporting documents. I believe that with this opportunity, I can demonstrate my commitment to Australia and my desire to contribute to its society and economy.
As a result of the applicants’ correspondence in response to the Tribunal’s letter of 22 January 2024, and having regard to ss 359C and 360 of the Act, the Tribunal held a hearing in relation to this application on 22 February 2024.
At the Tribunal hearing on 22 February 2024, the Applicant referred to issues the applicants had with their former solicitors in relation to processing the initial application made by the Nominator for the nominated position, the applicants’ desire to remain in Australia after having lived in this country for 10 years, and the issues they had in their home country. The Applicant again requested the Tribunal delay its decision or hold a further hearing in order to allow the applicants time to lodge an application for a separate visa class. The Tribunal noted that it had obligations to make a decision on an application as quickly as possible and in proportion to the complexity of the matter, it could not delay its decision for external processes to occur and did not consider a further hearing on this narrow issue was required. The Tribunal also pointed to the applicants’ stated legal representation in relation to their migration status and noted that issues regarding any application for a protection visa were not the subject of this review.
The Tribunal records its sympathy for the applicants’ position. However, having regard to all of the above, and based on the Tribunal’s decision of 30 November 2023, there is no approved nomination in relation to the nominated position. Therefore, cl.187.233(3) of the Regulations is not met.
The applicants have 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.
Pursuant to cl.187.311 of the Regulations, the Tribunal must affirm the decision to refuse to grant subclass 187 visa to the secondary applicant (being Ms Faiza Batool) because she does not meet the secondary criteria of being a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence that she can meet the primary criteria in her own right.
DECISION
The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
W Frost
MemberATTACHMENT A
187.233(1) The position to which the application relates is the position:
(a)nominated in an application for approval that:
(i)identifies the applicant in relation to the position; and
(ii)is made in relation to a visa in a Direct Entry stream; and
(iii)seeks to meet the requirements of subregulation 5.19(12); 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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