Jabri (Migration)

[2020] AATA 5246

Jabri (Migration) [2020] AATA 5246 (7 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Siraj Imran Jabri
Mr Imran Bin Masood Al Jabri
Master Ahmed Bin Imran Al Jabri
Miss Anabia Imran Jabri

CASE NUMBER:  1810273

HOME AFFAIRS REFERENCE(S):          BCC2017/4367894

MEMBER:Mary Sheargold

DATE:7 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 07 December 2020 at 9:23am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct entry stream – related position nomination refused – refusal affirmed on review – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

CASE
Singh v MIBP [2017] FCAFC 105

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 20 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 (Cth) (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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of ICT Account Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the nomination application made by Move Services Pty Ltd for the position of ICT Account Manager had not been approved.

6. The first named applicant appeared before the Tribunal by telephone on 2 December 2020 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether there is an approved nomination.

   Nomination of a position

10. 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.

11. 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 reg 1.13A and reg 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.

12. On 16 November 2020, the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments in writing on information that the Tribunal considered would be part of the reason for affirming the decision under review.  That adverse information was that the application for approval of the nominated position of ICT Account Manager by Move Services Pty Ltd had been refused by a delegate of the Minister of Immigration, that the delegate’s decision had been appealed to the Tribunal, and that the Tribunal had affirmed the delegate’s decision.  The letter outlined that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

13. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 30 November 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments, and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. 

14. On 30 November 2020, the applicants’ representative wrote to the Tribunal enclosing a statement by the applicant dated 27 November 2020.  That statement notes that the applicant had undertaken studies in printing and graphic design whilst holding a student visa, and that she wished to work in the field of graphic design and information technology.  The applicant stated that she worked for an organisation called DPS Printing for 2 years, working as an ICT Account Manager.  The applicant states that after 5 years of work experience as an ICT Account Manager, she undertook a graduate certificate in leadership diversity as well as a Graduate Diploma of Strategic Leadership so that she may have all the skills necessary to run her own business in India in the future.

15. At the hearing, the applicant explained to the Tribunal that her nominating sponsor, Move Services Pty Ltd, was based in Tasmania, and that she and her family were willing to relocate there on the grant of a Subclass 187 visa.  The applicant told the Tribunal that she had not worked for Move Services Pty Ltd in the past, and that she understood that the nomination application had been refused.  The applicant told to the Tribunal that she accepted that this visa application was linked to that nomination application, and that without approval of that nomination application, the Subclass 187 visa could not be granted.

16. The nominator’s nomination application was refused by the Department. The applicants failed to provide any response to, or comments on, this information. As the nomination application for the position to which the applicant’s Subclass 187 visa application relates has not been approved, it follows that the applicant does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations.

17. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

18. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, she cannot overcome her current inability to meet cl.187.233 in relation to her application.  The nomination by Move Services Pty Ltd was specifically linked to her visa application, and that nomination was not, and now cannot be, approved.

19. Therefore, cl 187.233(3) is not met.

20. 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.

21. Pursuant to cl.187.311, the Tribunal must also affirm the decision to refuse to grant Subclass 187 visas to the secondary applicants as they are not the member of a family unit of a person who holds a Subclass 187 visa, and there is no evidence that they meet the primary criteria in their own right.

    DECISION

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

    Mary Sheargold
    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.