Javed (Migration)

[2019] AATA 1847

Javed (Migration) [2019] AATA 1847 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gul zaib Javed
Mrs Amna Zahid

CASE NUMBER:  1905444

HOME AFFAIRS REFERENCE(S):           BCC2018/745503

MEMBER:Karen McNamara

DATE:11 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 June 2019 at 11:08am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Accountant (General) – subject of an approved nomination – nomination application refused – decision under review affirmed

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

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 (the Act).

2. The applicants applied for the visas on 14 February 2018. 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 Mr Gul Zaib Javed (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Accountant (General) ANZSCO 221111.

5. The decision record provided to the Tribunal by the applicant records that the delegate refused to grant the visas because the applicant did not meet cl.187. 233 of Schedule 2 to the Regulations because at the time of the delegate’s decision, the Department had not been able to establish contact with the nominator, Select One Pty Ltd. The delegate further notes that the applicant did not provide evidence to indicate that the position was available to him. As the position was no longer available to the applicant, the delegate found that the applicant did not meet cl.187.233(5). Therefore, the applicant did not meet cl.187.233.

6. The applicants appeared before the Tribunal on 3 June 2019 to give evidence and present arguments. Prior to the commencement of the hearing the applicants advised the Hearing Officer that the secondary applicant required an Interpreter. As no prior request had been made by the applicants to the Tribunal for Interpreter services, the Tribunal offered the services of an Interpreter in Hindi who was present to assist in another matter before the Member. The applicants accepted this offer. The Tribunal notes however the secondary applicant subsequently elected not to use the Interpreter.

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 applicant meets the requirements of cl.187.233.

   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.

10. 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.

11. The applicants attended the hearing on 3 June 2019. The Tribunal explained that in order to meet cl.187.233, the applicant must be the subject of an approved nomination. The Tribunal advised the secondary applicant, Mrs Amna Zahid that her application was subject to satisfying cl.187.311 in so far as the Tribunal must be satisfied that she is a member of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

12. The applicant told the Tribunal that he had engaged the services of a Migration Agent to assist him in obtaining a 187 visa. He tried unsuccessfully to contact the nominated employer and found that the nominator’s phone number was disconnected. He was subsequently told by the Department that there was no nomination. The applicant expressed his dismay to the Tribunal in so far as he does not understand why the Migration Agent did this. The applicant provided the Tribunal with a copy of a Memorandum of Mutual Understanding between himself and Australia Workpermit dated 16 January 2018.

13. The secondary applicant told the Tribunal that she didn’t know anything about this matter and that she cannot go back to Pakistan as her family do not approve of her marriage and that she currently holds a student visa.

14. The Tribunal acknowledges the dismay of the applicants and accepts the evidence suggesting the representative did not assist the applicants; however, the Tribunal must apply the legislation as it stands. As explained to the applicants at the hearing, the Tribunal must apply the law. 

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

16. Having considered the evidence before it, the Tribunal finds that the first named applicant does not satisfy cl 187.233(3).

17. Therefore, as the first named applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 is not met.

18. As the first named applicant is found not to have met the prescribed criteria for a subclass 187 visa, the secondary applicant Mrs Amna Zahid as a member of his family unit, is therefore unable to satisfy the criteria for this visa class. As such the secondary applicant does not satisfy cl.187.311.

19. The applicants have 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas.

   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.