Khan (Migration)

[2022] AATA 3454

Khan (Migration) [2022] AATA 3454 (30 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tehseen Faraz Khan
Master Huzaifa Khan
Miss Merab Khan
Mrs Fatima Khan
Miss Aizah Khan

CASE NUMBER:  1911566

HOME AFFAIRS REFERENCE(S):          BCC2016/2086098

MEMBER:Michelle East

DATE:30 September 2022

PLACE OF DECISION:  Perth

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

Statement made on 30 September 2022 at 3:25pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – cook – subject of approved position nomination – refusal of related nomination application affirmed on review – no response to tribunal’s invitation to comment – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(1), (3), 187.311

CASE
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 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 18 June 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 (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 Cook (ANZSCO 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because there was no approved nomination.

6. On 9 September 2022 the Tribunal wrote to the review applicant pursuant to s 359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review:

   On 2 April 2019, the Tribunal received an application for review of the decision of
   the Department of Home Affairs to refuse a nomination in respect of MD BROS
   PTY LTD. On 30 March 2022, the Tribunal affirmed the Department’s decision to
   refuse the nomination. Consequently, the decision made by the Department of
   Home Affairs on 20 March 2019, to refuse the nomination, stands.

   The letter indicated that the above information was relevant because the Tribunal may find
   that the applicant did not meet the requirements of cl.187.233, which requires there to be an
   approved nomination in relation to the applicant.

7. 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 23 September 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicant has not provided the comments within the prescribed period and no extension has been 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 or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

11. 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.

12. 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.

13. On the basis of the evidence before it, the Tribunal finds that the nomination made by MD Bros Pty Ltd, the nomination referred to in cl.187.233(1) has been refused.  Therefore, the nomination has not been approved and cl.187.233(3) is not met.

14. 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.

15. The secondary applicants applied on the basis of being a member of the family unit of a person who holds a subclass 187 visa.  As the applicant does not hold a subclass 187 visa, they do not meet clause 187.311.

    decision

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

    Michelle East
    Senior 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.