Khan (Migration)

[2020] AATA 1200

Khan (Migration) [2020] AATA 1200 (22 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Younus Khan

CASE NUMBER:  1911680

HOME AFFAIRS REFERENCE(S):          BCC2017/4087497

MEMBER:Phoebe Dunn

DATE:22 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 22 April 2020 at 10:04am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Chef – 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 3 November 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Chef (ANZSCO 351311).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the related nomination lodged by Sunny Saha Pty Ltd (the nominator), being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister for Home Affairs on 3 April 2019 and as such there was no approved nomination.

6. The applicant appeared before the Tribunal by telephone on 9 April 2020 to give evidence and present arguments.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant consented to the hearing being conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The applicant was represented in relation to the review by his registered migration agent Mr Ahmad Wali Mohseni.

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 there is an approved nomination.

11. Prior to the hearing by email received on 8 April 2020, the applicant submitted the following documents for consideration:

    a.Copies of email correspondence and associated documentation between the applicant, the nominator and then migration agent regarding lodgement of the nomination and visa applications dated 6 October 2017;

    b.Screenshot of the applicant’s Department of Home Affairs application page, as evidence that the registered email for notifications had been changed multiple times;

    c.Copies of email correspondence dated 24 April 2019 and associated documentation between the applicant and his then migration agent confirming lodgement of the applicant’s Subclass 187 visa application;

    d.Copies of email correspondence between the nominator and the migration agent dated 18 October 2017 and associated business documentation in support of the nomination application;

    e.Copy of email correspondence between the nominator and the migration agent dated 27 October 2017 attaching a copy of the 2017 Financial Statements for the nominating business;

    f.Screenshot image of the migration agent managing the nomination and associated Subclass 187 visa application.

12. At the hearing of this matter the applicant gave detailed oral evidence of the background to this matter. The applicant stated that he first came to Australia to study, completing a Certificate IV and a Diploma in Business Management followed by a Certificate III and IV  in Hospitality. He stated he applied for a temporary residency visa before applying for a Subclass 187 visa in the nominated position of Chef. He stated that he had been working as a Chef in Melbourne, part-time, before successfully applying for the position of Chef with the nominating business in Tasmania. He stated that he was waiting for the nomination to be approved before he moved to Tasmania and had been in regular contact with the nominator about the application process and timelines. The nominator had advised him that he would arrange accommodation for him as part of his employment package, but he should not move to Tasmania until the application was approved. 

13. The applicant stated that the first time he became aware that the nomination had not been approved was when he received the letter from the Department. He stated that he tried to contact the nominating business, but they would not answer the phone.  He then contacted the migration agent who was handling the applications who later confirmed that the nomination had not been approved and that the nominator did not lodge a review of the application. The applicant stated that he was in the situation because of the actions of others and he was a victim.

14. At the hearing, the Tribunal put information to the applicant under s.359AA of the Act that would be the reason, or part of the reason, for affirming the decision that is under review.  The Tribunal advised the applicant that the Tribunal was raising the information with the applicant, not because the Tribunal has already made up its mind in relation to the information, but to give the applicant an opportunity to comment on or respond to the information in order to help the Tribunal to make up its mind.  The Tribunal explained the relevance of the information and the consequences of it.

15. The particulars of the information are that the application for approval of the nominated position made by Sunny Saha Pty Ltd in respect of the applicant’s Subclass 187 visa application was refused by the Department on 3 April 2019 and the nominator did not apply for review of that decision.

16. The Tribunal explained that this information is relevant to the review because it suggests that there is not an approved nomination on foot in respect of the applicant, and that it is a requirement for the grant of a Subclass 187 visa that the position nominated in the visa application is the subject of an approved nomination. The Tribunal further explained that if the Tribunal relied on this information in making its decision, the Tribunal may find that the position specified in the applicant’s visa application is not the subject of an approved nomination, which is a requirement of cl.187.233(3) of Schedule 2 to the Regulations, and that this would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review.

17. The Tribunal explained that this would be the reason, or part of the reason, for affirming the delegate’s decision to refuse the applicant’s visa application. The Tribunal invited the applicant to comment on or respond to the information, or to seek additional time to comment on or respond to the information.  After conferring with his migration agent, the applicant did not seek additional time to comment or respond.

18. In response, the applicant stated that he understood that as the nomination application had been refused and as his employer had not lodged a review of the decision to refuse the nomination application, there was no approved nomination and he did not meet the criteria for the grant of the Subclass 187 visa.

19. The applicant’s agent noted that they had submitted the documents referenced in paragraph 11 of this decision to demonstrate that the applicant had understood that the nomination application had been lodged and was genuine and that he had done everything that was asked of him by the nominating business and the migration agent handling the nomination application.  He stated that the applicant had done this to address questions raised in a natural justice letter dated 14 February 2019 received from the Department suggesting that the nominated position was not genuine because the Department had received information that the nominator did not lodge the application and did not intend to employ the applicant in the nominated position and inviting the applicant to respond to evidence suggesting the applicant provided false or misleading information in relation to his visa application.

20. The Tribunal notes that a second natural justice letter dated 4 April 2019 was sent by the Department to the applicant inviting the applicant to comment on the decision of the Department to refuse the associated nomination application. The Tribunal notes the issue before the Tribunal is whether the applicant meets the requirements of cl.187.233(3) which requires that the associated nomination has been approved. Accordingly, the matters raised in the first natural justice letter are not relevant to the issues before the Tribunal and have no bearing on this decision.

21. The Tribunal stated that it understood the circumstances are difficult and reiterated to the applicant that the issue in the case was whether the related nomination had been approved.  The Tribunal noted that a requirement for the grant of a Subclass 187 visa is that the related nomination application had been approved.  The Tribunal noted that where a nomination has been refused and that decision is not the subject of a review application before the Tribunal, the applicant could not meet the requirements for the grant of the visa and the Tribunal has no discretion in relation to this requirement.

    Nomination of a position

22. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

23. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 of the Regulations); 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.

24. In this case, the nomination application lodged by the nominator, Sunny Saha Pty Ltd, being the nomination referred to in cl.187.233(1) in respect of the applicant, was refused by a delegate of the Minister for Home Affairs on 3 April 2019 and that decision is not the subject of a review application before this Tribunal.  As such, there is no approved nomination as required under cl.187.233(3).  Accordingly, cl.187.233(3) is not met.

25. 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

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

    Phoebe Dunn
    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.