Jarral (Migration)

[2020] AATA 3462

Jarral (Migration) [2020] AATA 3462 (6 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tasleem Ullah Jarral

CASE NUMBER:  1803982

HOME AFFAIRS REFERENCE(S):          BCC2016/3236489

MEMBER:Michelle East

DATE:6 July 2020

PLACE OF DECISION:  Perth

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

Statement made on 06 July 2020 at 4:09pm

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 – sponsoring business deregistered – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

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 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 29 September 2016. 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 Retail Manager (General).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination lodged by the nominator was not approved.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

   Nomination of a position

8. 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.

9. 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.

10. The Tribunal wrote to the applicant pursuant to section 359A of the Act on 12 May 2020 with particulars of information as follows:

    There is information before the Tribunal that suggests the nominator is no longer trading.  Information from the Australian Securities & Investments Commission (ASIC) register shows that SNZ HOSPITALITY PTY LTD was deregistered on 9 June 2019.  There is no evidence before the Tribunal that the company’s registration has been reinstated with ASIC since that time.

    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.

11. The applicant was invited to respond by 26 May 2020.  The Tribunal is satisfied that the letter of 12 May 2020 was sent to the email address provided by the applicant for the purposes of the review.

12. The applicant has not provided the information within the prescribed period or requested an extension of time to do so.  In these circumstances s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if the review applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40.

13. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support his review application.

14. To date the requested information has not been provided and the applicant has not made any contact with the Tribunal to indicate that the information is forthcoming.  The Tribunal is not required to delay indefinitely making its decision.  In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

15. Based on the evidence before it, the Tribunal is not satisfied that at the time of its decision that there is an approved nomination because the sponsoring nominator has been de-registered and there is no evidence to suggest the registration has been reinstated with ASIC since that time.  Therefore cl.187.233(3) is not met.

16. 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

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

    Michelle East
    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.