Khan (Migration)

[2020] AATA 3872

Khan (Migration) [2020] AATA 3872 (13 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sameer Ahmed Khan
Mrs Ishrath Sultana
Miss Ayeza Khan
Miss Abiha Khan

CASE NUMBER:  1806873

HOME AFFAIRS REFERENCE(S):          BCC2017/1559014

MEMBER:De-Anne Kelly

DATE:13 July 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 13 July 2020 at 10:50am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Retail Manager – no approved nomination – members of the family unit – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19; 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 1 May 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 (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 Direct Entry stream, to work in the nominated position of retail manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of the Regulations because on 2 February 2018 the employer nomination application by MS Star Pty Ltd was refused being the application referred to in cl.187.233(1).

6. The applicant appeared before the Tribunal on 21 May 2020 to give evidence and present arguments. This was a joint hearing of the employer nomination refusal review and the visa application refusal review.

7. The applicant was represented in relation to the review by its registered migration agent, Mr Srinivasan Thotta, MARN 0961695, of Australia Fair Migration in Victoria.

8. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets cl.187.233(3) which provides as follows;

   (3)      The Minister has approved the 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 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.

12. After the delegate of the Minister refused the employer nomination, the nominator lodged an application with the Tribunal to review the decision. The Tribunal affirmed the decision 24 June 2020 to refuse the nomination on the basis the nominator had failed to satisfy r.5.19(4) of the Regulations.

13. On 26 June 2020 under s.359A of the Act, the Tribunal sent to Mr Sameer Ahmed Khan, Mrs Ishrath Sultana, Miss Abiha Khan and Miss Ayeza Khan an invitation to comment or respond to the information that the employer nomination review had been affirmed by the Tribunal. The letter stated that 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 and if the Tribunal relied on this information in making a decision, we may find that the position specified in the visa application is not the subject of an approved nomination. This would mean they do not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review. They were advised a response should be received by 10 July 2020 or an extension of time could be requested but the request must be made by 10 July 2020

14. To date, there has been no response from the applicants to the invitation to comment or respond. The Tribunal finds there is no approved employer nomination to satisfy cl.187.233(3).

15. Therefore, cl.187.233 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.

17. Mrs Ishrath Sultana, Miss Abiha Khan and Miss Ayeza Khan were secondary applicants who made a combined application with the primary applicant for a Regional Employer Nomination (Permanent) (Class RN) (subclass 187) (Regional Sponsored Migration Scheme) visa and sought to satisfy cl. 187.311 of Schedule 2 to the Migration Regulations 1994. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.187.311. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the visa application. This clause provides as follows;

    187.311
    The applicant:

    (a)is a member of the family unit of a person (the primary applicant) who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b)made a combined application with the primary applicant.

18. Mrs Ishrath Sultana, Miss Abiha Khan and Miss Ayeza Khan as the secondary applicants, applied as the spouse and children and therefore as members of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Employer Nomination (Permanent) (Class RN) (subclass 187) (Regional Sponsored Migration Scheme) visa. Therefore, the primary applicant is not a person who holds a Subclass 187 visa and the secondary applicants are members of the family unit of a person, the primary applicant, who does not hold a Subclass 187 visa. The secondary applicants therefore do not satisfy cl 187.311(a) and do not satisfy cl.187.311.

19. The secondary applicants do not meet cl.187.311 and the Tribunal affirms the decision not to grant them a Subclass 187 visa.

    DECISION

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

    De-Anne Kelly
    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.