Islam (Migration)

[2020] AATA 5315

Islam (Migration) [2020] AATA 5315 (15 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammed Mazharul Islam
Mrs Tahmina Nasrin

CASE NUMBER:  1806590

HOME AFFAIRS REFERENCE(S):          BCC2017/1385569

MEMBER:K. Chapman

DATE:15 October 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 15 October 2020 at 3:32pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Retail Manager (General) – no approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.13; 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 Home Affairs on 28 February 2018 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 first named applicant, Mr Mohammed Mazharul Islam, applied for the visa on 14 April 2017, including the second named applicant in the application. 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 (hereafter ‘the applicant’) is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager (General) (ANZSCO Code 142111). That position was nominated by Ausbangla Enterprises Pty Ltd (‘the nominator’), the applicant’s employer.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, which required him to be the subject of an approved nomination by the original nominating employer, which has not been withdrawn and with the position still being available to him. The delegate found that the nomination made by the nominator had been refused on 30 January 2018. Additionally, the second named applicant was refused the visa given they were not a member of the family unit of a person who met the primary visa criteria and there was no evidence that they met the primary visa criteria in their own right. On 12 March 2018, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application for review.

6. The applicant appeared by telephone before the Tribunal on 8 September 2020 to give evidence and present arguments. The applicant confirmed that he was comfortable participating in the hearing by telephone. The applicant was represented in relation to the review by his registered migration agent.

7. Following the review hearing, on 25 September 2020, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting him to provide comments on, or response to, the following information:

   a.“The application for approval of the nominated position made by Ausbangla Enterprises Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the Tribunal (see AAT matter 1802909). This means that the nominator’s application for the nominated position has not been approved.”

8. No response to the above invitation has been received by the Tribunal at the time of this decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant satisfies cl.187.233.

    Nomination of a position

11. 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.

12. 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.

13. At the review hearing, the applicant advised that he is performing the nominated occupation. The Tribunal notes that the nomination of the applicant for the position of Retail Manager (General) (ANZSCO Code 142111) by Ausbangla Enterprises Pty Ltd (‘the nominator’) has not been approved. Following careful consideration, the Tribunal finds that at the time of its decision there is no evidence of an approved nomination of a position relating to the applicant. Accordingly, the requirements of cl.187.233(3) are not satisfied. The Tribunal so finds.

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. It follows that the second named applicant also does not meet the criteria for the grant of the Subclass 187 visa.

    DECISION

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

    K. Chapman
    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.