Khan (Migration)

[2020] AATA 1694

Khan (Migration) [2020] AATA 1694 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Md Sayeed Hossain Khan
Mrs Nusrat Sharmin

CASE NUMBER:  1834709

HOME AFFAIRS REFERENCE(S):          BCC2017/2306583

MEMBER:Jennifer Cripps Watts

DATE:27 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 27 May 2020 at 3:40pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) –­ Direct Entry stream – Café or Restaurant Manager – subject of ­an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 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 29 June 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 Café or Restaurant Manager, Australian and New Zealand Standard Classification of Occupations code 141111.

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 not an approved related nomination relating to the position in his visa application.

6. The applicant attended the Tribunal hearing by phone on 27 May 2020 to give evidence and present arguments.  They indicated in the written response to the hearing invitation that they did not require an interpreter.  This was confirmed with the applicant as correct at the beginning of the hearing.  The applicant’s wife, the secondary applicant, did not wish to give oral evidence.

7. The applicants were represented in relation to the review by their registered migration agent, Adam Khaze.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the nomination for the position specified in the visa application, Café or Restaurant Manager, by Rose View Corporate Pty Ltd has been approved.

10. At the beginning of the hearing, the Tribunal informed the applicant that due to the COVID-19 situation the Tribunal, Federal and other courts and tribunals are hearing matters by phone where it is appropriate to do so.  The applicant was told that it is very important that we are both confident that we are hearing and understanding each other clearly and, if he did not understand or hear a question, he should inform the Tribunal and the matter could be explained, clarified or rephrased.  From time to time matters were clarified, which is not unusual in a migration hearing.  The Tribunal is satisfied that the phone lines were clear and that all who participated in the hearing could be heard and understood.

    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 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.

13. Department records indicate that the nomination relating to the visa application and the position of Café or Restaurant Manager, by Rose View Corporate Pty Ltd, was refused on 17 October 2018.  They lodged an application for review and, on 12 February 2020, the Tribunal (differently constituted), found it had no jurisdiction to review the application.

14. On 7 May 2020, the Tribunal sent the applicant a letter particularising adverse information relating to the nomination and explaining why this would be a reason or part of the reason for affirming the decision to refuse the visa; relevantly, he was informed that it appeared that his application was not the subject of an approved nomination by Rose View Corporation for the position of Café or Restaurant Manager.  It was requested in the letter that the applicant respond to the information in writing no later than 21 May 2020, or within any extended timeframe granted.

15. The applicant provided a response by email on 21 May 2020 and confirmed he does not have the relevant approved nomination for the position of Café or Restaurant Manager by Rose View Corporate Pty Ltd.  In the email response the applicant also included details of other matters relating to his work history and circumstances leading up to the refusal of the nomination.  The following documents were attached to the email:

    a.Letter addressed to the applicant, dated 13 February 2020, on Department of Home Affairs letterhead, signed by Director Immigration Performance and Resourcing Section, Immigration and Settlement Services Group.  The letter refers to an allegation the applicant has made.

    b.Letter addressed to the applicant, dated 29 October 2019, on Department of Home Affairs letterhead, signed by Director Immigration Performance and Resourcing Section, Immigration and Settlement Services Group.  The letter refers correspondence sent to the Minister for Home Affairs on 9 September 2019 requesting a meeting.

    Other matters

16. While not material to the issue on the review, the Tribunal acknowledges that the applicant says he has lived in Australia for over 11 years, since 2008, and claims in his written response that he is in a position where he now has no nomination relating to his visa application through no fault of his own and that he is suffering financial hardship.  He made some serious allegations against a third party in the email, and also in his oral evidence at the Tribunal hearing.

17. It is acknowledged that the applicant informed the Tribunal that he and his wife now live in Adelaide and have a child who was born in Australia in March 2019.

18. For the reasons given in this decision, the Tribunal is satisfied that the applicant does not meet cl.187.233.

19. 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.

    Secondary applicant

20. The secondary applicant must meet the secondary criteria, relevantly, cl.187.311, which requires, in summary, that they are members of the family unit of a person who they made a combined application with and who holds a Subclass 187 visa.  As the refusal of the applicant’s visa has been affirmed, the decision to refuse the secondary applicant’s visa must also be affirmed because cl.187.311 is not met.

    DECISION

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

    Jennifer Cripps Watts
    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.