IQBAL (Migration)

[2020] AATA 303

IQBAL (Migration) [2020] AATA 303 (12 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr RASHID IQBAL
Mrs MEHWISH MASOOD
Master ZUHAYR IQBAL
Master ROHAAN RASHID IQBAL

CASE NUMBER:  1723540

HOME AFFAIRS REFERENCE(S):          BCC2017/1253374

MEMBER:Karen McNamara

DATE:12 February 2020

PLACE OF DECISION:  Sydney 

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

Statement made on 12 February 2020 at 11:39am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – General Medical Practitioner – subject of an approved nomination – review application withdrawn – different nomination application with a new sponsor – decision under review affirmed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 on 12 September 2017, 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 3 April 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for the grant of 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 Dr Rashid Iqbal (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of General Medical Practitioner (ANZSCO 253111).

5. On 12 September 2017, the delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations which required Dr Iqbal to be the subject of an approved nomination. The delegate found that the nomination lodged by Medinova Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration and Border Protection on 9 August 2017.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. The delegate also found that the second named, third named and fourth named applicants could not be granted Subclass 187 visas, as they did not meet the secondary visa criterion (cl.187.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

8. The applicants lodged a review application with the Tribunal on 29 September 2017 and provided the Tribunal with a copy of the delegate’s decision to refuse the visas.

9. On the 26 November 2019, the Tribunal invited the applicants to attend a hearing on 23 January 2020. The hearing was to be a combined hearing with the related nomination matter (AAT file 1719689). 

10. On 5 December 2019 the Tribunal wrote to the applicant to reschedule the hearing of 23 January 2020 and invited the applicant to attend a hearing on 11 February 2020.

11. On 7 January 2020, the applicant advised the Tribunal via email of his new residential address and requested “Please don’t cancel mine and my family’s Visa with the AAT without confirming it with me first.” The applicant attached a copy of the applicants’ passports.

12. On 10 January 2020, the nominator (Medinova Pty Ltd, withdrew their nomination review application in relation to the applicant, with the Tribunal.

13. On 13 January 2020, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the applicant’s nominating employer, Medinova Pty Ltd, withdrawing their nomination review application with the Tribunal,  which the Tribunal explained was relevant to the applicant  meeting cl.187.233(3) which requires for the grant of the visa, that the position specified in the applicant’s visa application is subject of an approved nomination. Response was sought by 28 January 2020.

14. On 28 January 2020, the applicant via email advised the Tribunal that he has a new nomination with SRI Medical Services Pty Ltd trading as Molong Medical Practice, Cnr Bank and Gidley Streets, Molong NSW. The applicant requested “please allow me to continue with processing my review application with the new company.”

15. On 10 February 2020, the applicant via email provided the Tribunal a letter dated 29 January 2020 from Molong Medical Practice Skin Cancer & GP Clinic regarding their intention to nominate the applicant.

16. On the morning of 10 February 2020, the applicant contacted the Tribunal to confirm details of his attendance at the scheduled hearing of 11 February 2020. Later in the afternoon the applicant presented at the Tribunal reception. The applicant spoke via telephone with a Tribunal officer in regard to his hearing of 11 February 2020. The applicant noted that the nominator had withdrew their nomination review and asked if he was still required to attend the hearing. The Tribunal Officer advised him in the affirmative. The applicant asked the Tribunal Officer if they knew what questions he would be asked, to which the Tribunal Officer advised that they did not know but it would relate to his 187 visa review. The applicant indicated that he understood and thanked the Tribunal Officer

17. On 10 February 2020, at 3.58pm, the applicant’s representative advised the Tribunal that they had received an email from the applicant advising “I won’t be able to attend the hearing due tomorrow 11/02/2020 at the AAT due to some personal and health issues”.

18. Upon receipt of this advice, the Tribunal made numerous attempts to contact the representative, to ascertain the applicant’s intentions in so far as continuation of his review application.

19. On 11 February 2020 the representative contacted the Tribunal via email and telephone confirming that the applicant would like a decision made on the papers.

20. The Tribunal resolved this matter on the papers.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

23. 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.

24. 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.

25. On 10 January 2020, the nominator (Medinova Pty Ltd, withdrew their nomination review application in relation to the applicant, with the Tribunal. The applicant was subsequently informed of the nomination withdrawal and invited to provide comment.

26. On 28 January 2020, the applicant advised the Tribunal that he has a new nomination with SRI Medical Services Pty Ltd trading as Molong Medical Practice, Molong NSW. The Tribunal notes a letter dated 29 January 2020 from Molong Medical Practice Skin Cancer & GP Clinic, stating inter alia

    “We have known Dr Rashid Iqbal for the last two years and would like to nominate him to work for the Molong Medical Practice Skin Cancer & GP Clinic.

    We are in the process of obtaining nominations through the RCB and the Immigration Department.

    Please allow Dr Iqbal to continue with this Nomination application.”

27. Whilst the Tribunal notes the intentions of Molong Medical Practice Skin Cancer & GP Clinic, in so far as they wish to nominate Dr Iqbal, there is no evidence before the Tribunal to support that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn and therefore the Tribunal places little weighting on the letter from Molong Medical Practice Skin Cancer & GP Clinic.

28. The Tribunal further notes that the provisions of cl.187.233 require that the position to which the application relates is the position that was the subject of the declaration made as part of the current visa application.[1] The matter before the Tribunal is in regard to the nomination by Medinova Pty Ltd who withdrew their review application with the Tribunal on 10 January 2020.

    [1] Cl.187.233(1) (b) The position to which the application relates is the position 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.

29. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore the applicant does not meet cl.187.233(3) of Schedule 2 to the Regulations.

30. As the first named applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

31. There is no evidence before the Tribunal to indicate that the second, third and fourth named applicants meet the primary requirements for grant of the visa.

32. In relation to the second named applicant Mrs Mehwish Masood, the third named applicant, Master Zuhayr Iqbal and the fourth named applicant  Rohaan Rashid Iqbal, the Tribunal notes that cl.187.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a 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. As the applicant has not met the requirements for the grant of a Subclass 187 visa, and is not the holder of a Subclass 187 visa, it follows that the secondary applicants, Mrs Mehwish Masood, the third named applicant, Master Zuhayr Iqbal and the fourth named applicant Rohaan Rashid Iqbal as a member of Dr Iqbal’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second and third and fourth named applicants do not satisfy cl.187.311 of Schedule 2 to the Regulations.

33. 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.

    DECISION

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

    Karen McNamara
    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.