Islam (Migration)

[2020] AATA 1198

Islam (Migration) [2020] AATA 1198 (14 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Md Tariful Islam

CASE NUMBER:  1835957

HOME AFFAIRS REFERENCE(S):          BCC2017/4386530

MEMBER:Karen McNamara

DATE:14 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 14 April 2020 at 3:58pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Chef – subject of an approved nomination – nominator deregistered – position no longer available – no response to s 359A invitation – not entitled to appear before the Tribunal – ­­­­­­decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40

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 (the delegate) to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 November 2017. 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, Mr Md Tariful Islam (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Chef (ANZSCO 351311).

5. The decision record provided to the Tribunal by the applicant, records that on 23 November 2018, the delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations. The delegate noted that the nomination lodged by Rose View Corporate Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration and Border Protection on 22 October 2018.

6. The applicant applied to the Tribunal on 7 December 2018 for review of the delegate’s decision.

7. On 3 March 2020, the Tribunal invited the review applicant under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 9 April 2020 at 10:00 am, as one of several cases to be heard concurrently.

8. On 5 March 2020, the applicant confirmed his attendance at the scheduled hearing of 9 April 2020.

9. On 10 March 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. 

10. The information related to information before the Tribunal that shows the nominator is no longer trading. Information from the Australian Securities & Investments Commission (ASIC) register shows that Rose View Corporate Pty Ltd was deregistered on 3 November 2019. There is no evidence before the Tribunal that the company’s registration has been reinstated with ASIC since that time.

11. The Tribunal explained in its letter of 10 March 2020, that this information is relevant because it suggests that the nominated position is not available to the applicant. If the Tribunal relies on this information together with other evidence before it, it may not be satisfied under r.187.233(5) that the position is still available to the applicant and further under r.187.233(3) the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister. The Tribunal may therefore find that the applicant does not meet the requirements for approval of the visa application and the decision under review may be affirmed.

12. The Tribunal’s letter of 10 March 2020 additionally stated the following;

    ‘An invitation to attend a scheduled hearing was sent to you on 3 March 2020.

    Please note, however, that if you do not respond to this letter within the stated
    or any extended timeframes granted, you will lose your right to appear before
    the Tribunal to give evidence and present arguments relating to the issues
    arising in relation to the decision under review and the hearing will be cancelled.

    You are invited to give comments on or respond to the above information in writing.
    Your comments or response should be received by 24 March 2020. If the comments
    or response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 24 March 2020, you may
    ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 24 March 2020 and you must
    state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    If we do not receive your comments or response within the period allowed or as
    extended, we may make a decision on the review without taking any further action to
    obtain your views on the information. You will also lose any entitlement you might
    otherwise have had under the Migration Act 1958 to appear before us to give
    evidence and present arguments.’

13. The invitation was sent to the last address provided in connection with the review and advised as stated above, if the comments or response were not provided in writing by       24 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s comments and the review applicant would lose any entitlement they may otherwise have had under the Act.

14. On the 19 March 2020, the Tribunal received from the applicant (via email) a completed Change of Contact Details form, signed and dated by the applicant on 20 January 2020.

15. The review applicant has not provided comments in response to the Tribunal’s invitation under s.359A of the Act within the prescribed period and no extension was sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40.

16. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act, to allow the applicant additional time in which to provide evidence to support the review application. In this regard the Tribunal considered whether, in the circumstances of this case, evidence that the applicant meets all of the requirements of r.5.19(4) of the Regulations is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

17. The Tribunal noted that the applicant accepted the Tribunal’s invitation to appear before it to give evidence and present arguments at a hearing on 9 April at 10.00 am.

18. The Tribunal determined that whilst the applicant was not entitled to a hearing, the Tribunal would afford the applicant the opportunity to give evidence and present arguments at an interview.

19. Mr Md Tariful Islam appeared before the Tribunal on 9 April 2020 to give evidence and present arguments.

20. The Tribunal exercised its discretion to hold the interview by telephone. The interview was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold an interview by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the interview was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

21. The applicant was represented in relation to the review by their registered migration agent. The representative did not attend the interview.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in the present case is whether the applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations.

    Nomination of a position

24. 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.

25. 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.

26. At the interview of 9 April 2020, the applicant told the Tribunal that “a guy told him that he could come and work there”. The applicant “was studying at the time and he was working there. In 2018 the application was rejected, and the guy closed the company.”

27. There is no evidence before the Tribunal to support that the applicant’s application is subject to a nomination that has been approved and has not subsequently been withdrawn.

28. Having considered 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.

29. As the 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.

30. 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.

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.