Huzaifa Sajjad (Migration)

[2018] AATA 3442

Huzaifa Sajjad (Migration) [2018] AATA 3442 (9 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Syed Huzaifa Sajjad
Mrs Eva Shahana Sultana

CASE NUMBER:  1707397

HOME AFFAIRS REFERENCE(S):           BCC2015/2489904

MEMBER:Alan McMurran

DATE:9 August 2018

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 09 August 2018 at 4:18pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

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 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 27 August 2015. 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 marketing specialist (ANZSCO 225113).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, because the applicant was not the subject of a nomination approved by the Minister and the nomination has not subsequently been withdrawn.

6. The applicants were represented in relation to the review by their registered migration agent.

   Background

7. On 25 July 2018, the Tribunal sent a letter to the applicants informing them of the particulars of an application for a nomination by the nominator, Aggarwal’s and Brothers Pty Ltd. The letter invited the applicants to comment on or respond to the particulars of the information, which informed the applicants that the nominated position was refused upon review by the Tribunal and the Department’s decision affirmed.

8. The applicants were requested to respond by 8 August 2018 and the applicants were advised of the consequences of not responding and that they would lose any entitlement they might otherwise have to appear give evidence and present arguments.

9. The applicants did not respond and the Tribunal has proceeded to determine the review on the basis of the information before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicants meet the requirements of cl. 187.233 of the Regulations.

    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 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.

13. 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.

14. The Tribunal has had regard to the Tribunal’s file, the Department’s file[1] and the nominator’s file[2],and the Tribunal file in the review of the nomination, 1701559.

    [1] Bcc 2015/2489904

    [2] BCC2015/2484454

    Findings

15. The Tribunal finds that the person who will employ the applicant is the person who made the nomination, Aggarwal’s and Brothers Pty. Ltd.

16. The Tribunal finds that consequent upon the review decision in the Tribunal file 1701559 made 13 July 2018, the nomination has not been approved and has not subsequently been withdrawn.

17. Having regard to the information before the Tribunal, it finds there is no adverse information known to immigration (or the Tribunal) about the nominator or a person associated with the nominator. The Tribunal finds there is no information to indicate to the Tribunal whether the position is still available to the applicant.

18. The Tribunal finds that the visa application was made by the applicant within 6 months after the nomination of the position by the nominator.

    No Nomination

19. As the Tribunal has found there is no approved nomination, the visa application cannot succeed and cl.187.233 is not met.

20. 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 Applicant

21. In relation to the secondary applicant, the Tribunal finds that the secondary applicant (Eva Shahana Sultana) is not the 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.

22. The secondary or dependent applicant is unable to satisfy the requirement of cl. 187.311 of the regulations, having made a combined application with the primary applicant, who has not satisfied the primary criteria for the grant of the visa.

    DECISION

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

    Alan McMurran
    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.