ILTUTHMISH (Migration)

[2019] AATA 3374

ILTUTHMISH (Migration) [2019] AATA 3374 (12 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ahsan Habib Mohammad ILTUTHMISH
Mrs Mohua KABIR

CASE NUMBER:  1701068

HOME AFFAIRS REFERENCE(S):          BCC2015/4021960

MEMBER:Michelle East

DATE:12 July 2019

PLACE OF DECISION:  Perth

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

Statement made on 12 July 2019 at 3:46pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – subject of an approved nomination – nomination application refused – request to delay decision – another nomination pending approval – decision under review affirmed

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

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 23 December 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 Café or Restaurant Manager.

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 nomination lodged by the nominator was refused by the delegate.

6. The applicant appeared before the Tribunal on 9 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend, Mr Islam who assisted the applicant with his submissions.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

   Nomination of a position

9. 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.

10. 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.

11. The Tribunal provided information to the applicant pursuant to section 359AA of the Act giving clear particulars of the information which would be the reason or part of the reason for affirming the decision under review.  The Tribunal advised that the nomination application lodged by the nominator which was refused on 30 November 2016 was not subject to an application for review within the Tribunal.  The applicant advised the Tribunal he was aware of this fact.

12. The applicant advised the Tribunal that he was now waiting on another nomination to be approved with another sponsor.  The applicant asked the Tribunal to delay making a decision on this application for 4-5 months pending the outcome of the other nomination.  He said he did not want to risk having to move off-shore until that was decided.

13. The Tribunal has carefully considered whether the time to make its decision should be delayed and whether the suggested delay would be reasonable.  Whilst the Tribunal is sympathetic to the applicant’s circumstances and his desire to remain in Australia if possible, the Tribunal does not think that a delay of 4-5 months is reasonable particularly given the time that has already expired in this application. 

14. 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.

15. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 187 visa as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 187 visa and there is no evidence that they meet the primary visa criteria for this subclass in their own right.

    Section 376 non-disclosure certificate

16. The Tribunal was in possession of a ‘Certificate and Notification Regarding Administrative Appeals Tribunal’s Discretion to Disclose Certain Information under s 376 of Migration Act, 1958’ dated 20 June 2017.  The Tribunal was of the preliminary view that the Certificate was valid.  The Tribunal provided a copy of the Certificate to the applicant and invited submissions as to its validity.  The Tribunal also provided the ‘gist’ of the information to the applicant, namely that it covered information subject to an anonymous dob-in regarding possible exchange of money for visas by the applicant.

17. The Tribunal advised the applicant that the information subject to the dob-in is not relevant for the purposes of this review and therefore it would not be placing any weight on the information at all in forming its conclusion.

18. The Tribunal offered the applicant time to respond to the Certificate however he did not request further time.

    DECISION

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

    Michelle East
    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.