Jabbar (Migration)

[2020] AATA 2373

Jabbar (Migration) [2020] AATA 2373 (26 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Jabbar

CASE NUMBER:  1729610

HOME AFFAIRS REFERENCE(S):          BCC2017/1512892

MEMBER:Susan Reece Jones

DATE:26 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 26 June 2020 at 10:06am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Electronic Equipment Trades Worker – subject of an approved nomination – nomination application refused – pending Federal Circuit Court appeal – Tribunal declined indefinite adjournment of decision – decision under review affirmed

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

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 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 26 April 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, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Electronic Equipment Trades Worker: ANZSCO 342313.

5. As set out in the delegate’s decision (a copy of which was provided to the Tribunal by the applicant with his review application), on 27 September 2017, the delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because based on the evidence provided by the nominator, SAHI ELECTROTECH PTY LTD (Sahi), there was no indication the business would be financially viable in future. Further, the evidence provided to the Department was insufficient to demonstrate that the nominee would be employed on a full-time basis in the position for at least 2 years. On this basis, the delegate found that the nominator had not demonstrated that the business had the financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years. Therefore, regulation 5.19(4)(d) was not met and the nomination was refused. The applicant therefore could not satisfy cl.187.233, which required he was the subject of an approved nomination.

6.    On 29 November 2019, the nominator represented by its sole director Mr Sahi, appeared before the Tribunal to give evidence and present arguments. The applicant did not attend that hearing. Instead, on 17 April 2020, the applicant attended the hearing at the Tribunal. His representative, Mr Anthony Clarke of Anthony L. Clarke Migration Services was also in attendance.

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 relevant nomination has been approved.

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.

1. 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.

Nominator proceedings

1. The applicant applied for a visa on the basis of a nomination made by SAHI ELECTROTECH PTY LTD, (the nominator or Sahi). The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which he made the relevant declaration at the time of the visa application, was refused by the Department on 27 September 2017.

2. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination.

3. On 13 March 2020, the Tribunal affirmed the decision of the Department to refuse the nomination. 

   Applicant proceedings

4. Mr Jabbar- the applicant - attended the hearing at the Tribunal on 17 April 2020 by way of telephone due to the COVID-19 circumstances.  The hearing commenced with the Tribunal providing the applicant with a review of the history of the proceedings in relation to the refusal of the application for nomination by his employer, Sahi. The Tribunal outlined that in order for his application to succeed, the applicant must be the subject of an approved nomination of Sahi as his employer. 

5. At the hearing, the Tribunal invited the applicant to outline and explain his employment history with Sahi. The applicant provided an account of his work experience and told the Tribunal that at about the time he finished studying and after completing the government Job Ready Program, he had met the principal of the nominator, sole director Mr Sahi, at the place of worship they both attended. The applicant explained that he discussed his skills with Mr Sahi who had told the applicant he wanted to establish a business in the Kilmore / Wandong area in regional Victoria and he was looking for someone to work at the business.

6. The applicant further explained that he was offered employment with Mr Sahi, working initially part time as a trial at the nominator’s principal office in Heidelberg for approximately 5 to 6 months. When the nominator ultimately leased the business premises, the applicant commenced working full time at the newly leased site in Wandong in regional Victoria.

7. At the hearing, the Tribunal explained to the applicant that on the basis the nominator’s application had been affirmed, the consequence was that nomination could not be approved. The applicant expressed his disappointment that the nomination had not been approved, noting that he had done everything required of himself.

8. At the hearing, the applicant’s representative Mr Clarke acknowledged that because the nomination of Sahi was not approved, there could be no approval of Mr Jabar’s application. He likewise expressed his disappointment in the outcome of the nomination decision. At the hearing, both the applicant and the representative were invited by the Tribunal to provide any other evidence or submissions in support to the Tribunal. Both the applicant and the representative advised the Tribunal at the hearing that there were no further submissions the applicant wished to make other than to advise that the nominator had appealed the Tribunal’s decision to the Federal Court.

9. Having received no response or further submissions from the applicant, on 29 May 2020 the Tribunal wrote to the applicant pursuant to s.359(A) of the Migration Act. The applicant was invited to comment or respond to the issue that the application for approval of the nominated position made by Sahi that had been refused by a delegate of the Minister for Immigration was affirmed by the Tribunal. This issue is relevant because it shows that the applicant is not the subject of an approved nomination by his original nominator Sahi, and thus cannot meet cl.187.233(2). The applicant was invited to provide comments on or respond to the Tribunal by 12 June 2020. As at the date of decision, the Tribunal has received no response from the applicant.

10. In relation to the nominator’s application before the Federal Circuit Court, the Tribunal is mindful that cl.187.233 requires that, amongst other things, at the time of the Tribunal's decision, the applicant continues to be the subject of an approved nomination by the original employer who nominated him at the time that he made his visa application. The Tribunal has also had regard to Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, in which the Courts held that the Tribunal is not obliged to indefinitely defer its decision-making processes to enable an applicant to try to meet the relevant visa criteria. On this basis, the Tribunal finds that:

    ·the Tribunal is required to make a decision efficiently and justly and must not delay making a decision unnecessarily;

    ·in accordance with the requirements set out in the legislation, the Tribunal cannot remit the visa application without the approval of the nomination of Sahi;

    and

    ·there is no indication of when a Federal Court decision is expected or a strong indication that the Federal Court case will succeed and hence, the Tribunal does not consider it appropriate to delay a decision merely because the nominator Sahi has appealed to the Federal Court.

11. Accordingly, the Tribunal finds that cl.187.233 (2) is not met as there is no approved nomination of Sahi and therefore cl.187.233 as a whole cannot be met by the applicant.

12. Therefore, given the finding that cl. 187.233 is not met, the appropriate course is to affirm the decisions not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

13. 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

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

S. Reece Jones
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.