KHAN (Migration)

[2020] AATA 5247

KHAN (Migration) [2020] AATA 5247 (11 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wajahat Hussain KHAN

CASE NUMBER:  1804469

HOME AFFAIRS REFERENCE(S):          BCC2016/2977330

MEMBER:Mr S Norman

DATE:11 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 11 December 2020 at 9:36am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related position nomination refused – no response from nominator – refusal affirmed on review – no substantive response from applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359A
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 187.233

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). The Department delegate’s decision was lodged with the Tribunal.  

2. The applicant applied for the visa on 7 September 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). 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.

3. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Practice Managers nec (ANZSCO: 5122995). On 9 February 2018, the delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

5. 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.

6. On 3 January 2018, the nomination lodged by WESTVIEW HEALTHCARE PTY LTD, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister. As the nomination had been refused, the delegate subsequently found that cl.187.233(3); and cl.187.233 were not met.

7. Next, the delegate assessed the claims under the Temporary Residence Transition stream. Under cl.187.223 the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the correlating nomination did not seek to meet the requirements of and was not assessed under r.5.19(3), the applicant did not meet cl.187.223. The delegate also considered the claims under the Agreement stream. As the correlating position was not nominated by an employer in accordance with a labour agreement, the applicant did not meet cl.187.242. The delegate then refused to grant the Regional Sponsored Migration Scheme (Subclass 187) visa.

8. The associated nominator (WESTVIEW HEALTHCARE PTY LTD – AAT 1801471) subsequently failed to respond to the Tribunal s.359(2) letter within the prescribed time (even after a requested extension of time had been granted). After having then considered the evidence lodged by the nominator, the Tribunal decided to affirm the decision relating to the nominator, based on the information before it.

9. The Tribunal did invite the visa applicant to a hearing (scheduled for 26 November 2020) but shortly prior to same, and by email of 23 November 2020, the visa applicant (applicant) declined the offer of a hearing. The applicant had stated:

   I sincerely apologize that I shall not be able to attend the TELEPHONIC interview scheduled on 26TH NOV 2020 at 10:30am (NSW Time) due to unavoidable circumstances [emphasis added].

   I request you to conclude your decision as per previous submitted documents.

10. By email of 24 November 2020, the Tribunal advised the applicant that ‘without more, the Member has decided not to reschedule the hearing and therefore, the hearing will proceed as scheduled.’

11. The applicant did not attend the hearing and the Tribunal issued a s.359A letter dated 26 November 2020. That stated (in part), on 26 November 2020 the Tribunal affirmed the Department's decision not to approve the nomination of their nominating employer (Westview Healthcare Pty Ltd). The applicant was further advised this information was relevant because cl.187.233(3) required that the applicant’s associated nomination had been approved. Also, if the Tribunal relied on this information it may find the nomination in relation to them had not been approved and consequently the decision under review would be affirmed. The applicant was requested to respond in writing by 10 December 2020.

12. By email of 8 December 2020, the applicant responded to the Tribunal s.359A letter. The applicant said (words to the effect and in part) that he was ‘unaware of the depth how immigration is analysing his application’; that he had waited over 5 years; he had resided in Australia for almost 9 years; he was not certain how a named person ‘runs their business model’; he requested advice about ‘his options’.

13. By email of 9 December 2020, the Tribunal thanked the applicant for his response, and advised:

    … the Tribunal does not propose to request any further evidence or submissions. Further, the Tribunal is unable to advise you of your options. … the letter accompanying a Tribunal decision will contain information that you could read.

14. That being said, based on the evidence before it, the Tribunal is satisfied the nomination application of the associated nominator has been refused; and that the applicant therefore has not met cl.187.233(3).

15. 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

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

    Mr S Norman
    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.