Islam (Migration)

[2018] AATA 1771

Islam (Migration) [2018] AATA 1771 (4 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Khandaker Sad Islam
Ms Seema Parvin Moni
Mr Khandaker Ibrahim Islam
Mr Irfan Ishaq SAAD

CASE NUMBER:  1620052

DIBP REFERENCE(S):  BCC2015/3418030

MEMBER:Hugh Sanderson

DATE:4 May 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 04 May 2018 at 10:56am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) 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), ss 65, 359A
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 19 November 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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 cook. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

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 application of the applicant sponsor, OM Shiv Pty Ltd, had been refused by the Department.

   Background

6. The applicant applied for the visa on the basis of his being sponsored to work as a cook at the Lazzie Cafe and Restaurant located in Quirindi in regional New South Wales. The sponsor of the applicant was OM Shiv Pty Ltd.

7. The Department refused the nomination application by Om Shiv Pty Ltd on 19 September 2016. The basis of that decision was that the delegate was not satisfied that the sponsor would be able to employ the applicant in the nominated position on a full-time basis for at least two years. Both the sponsor and the applicant applied to the Tribunal for a review of the decisions to refuse the sponsorship application and the visa application.

8. The applicant appeared before the Tribunal on 26 March 2018 to give evidence and present arguments. The hearing was a combined hearing with the sponsor’s application. The sponsor failed to attend the hearing. The applicants and the sponsor were represented in relation to the review by their registered migration agent who attended the hearing.

9. The applicant said that he had stopped working for the sponsor in December 2017. He said that he left working at the restaurant because the applicant had not paid him for a while. He was now living in Sydney working in a warehouse. The applicant said that the restaurant had been closing at 5:00pm because it was not very busy and the number of staff had been cut back. He said that he did not know if the restaurant was still operating. He said that he had not had any contact with the operators of the restaurant since January 2018, despite attempts to contact them.

10. The Tribunal made a decision on 26 March 2018 affirming the Department’s decision to refuse the nomination application of OM Shiv Pty Ltd.

11. The Tribunal wrote to the applicant on 28 March 2018 pursuant to s.359A of the Act noting that, as the Tribunal had now affirmed the Department’s decision to refuse the nomination application of sponsor, the applicant was not the subject of a current approved relevant nomination. As such, the Tribunal may find that the applicant does not meet the requirements of cl.187.233(3) which would be the reason, or a part of the reason, for affirming the decision under review. The applicant was required to respond to this information by 11 April 2018.

12. The applicant’s agent, who is also the agent for OM Shiv Pty Ltd, wrote to the Tribunal on 10 April 2018 requesting an extension of time to respond to the 359A letter. It was claimed that OM Shiv Pty Ltd had advised that they were lodging an appeal against the Tribunal’s decision and the applicant required further time to consider their response. The Tribunal agreed to extend the time to provide comments or a response to the information to 26 April 2018.

13. At the time of this decision, the Tribunal has received no response from the applicant and no further information has been provided.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant is the subject of an approved nomination.

    Nomination of a position

16. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

17. 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.

18. The applicant was sponsored in this application by OM Shiv Pty Ltd. The Department refused the nomination application and that decision has now been affirmed by the Tribunal on review. Accordingly, the applicant is not the subject of an approved nomination.

19. It is noted that the applicant has not been working for the sponsor in their restaurant in regional NSW since December 2017. He is now working in a warehouse in Sydney. He is not aware if the restaurant where he was claiming to work and planning to work if his visa was granted is still operating. At the hearing, he claimed not to have had any contact with the sponsor since January 2018. Although the applicant’s agent is also on record as the agent acting for the sponsor, there is no information that the applicant’s agent has had any contact or any continuing communication with the sponsor. It is noted that the applicant’s agent stated that the sponsor was lodging an appeal against the Tribunal’s decision. As there is no information that such an appeal has been lodged it is questionable whether the claim made by the applicant’s agent to the Tribunal has been honestly made.

20. As the sponsorship nomination of OM Shiv Pty Ltd has been refused by the Department and that decision has been affirmed by the Tribunal and there is no information before the Tribunal that the applicant is the subject of any other approved nomination or that any nomination application of the applicant is pending finalisation for any reason, the Tribunal finds that the applicant is not the subject of an approved nomination.  Therefore, cl.187.233 is not met.

21. 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.

22. The only claims made by the second named visa applicants are based on being members of the family unit of a person who satisfies the primary criteria. As the first named applicant does not satisfy the primary criteria, the second named visa applicants do not meet the criteria for the grant of the visa and the decisions to refuse their applications must also be affirmed.

    DECISION

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

    Hugh Sanderson
    Member