Khan (Migration)

[2019] AATA 3402

Khan (Migration) [2019] AATA 3402 (16 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rezwanul Kabir Khan

CASE NUMBER:  1908259

HOME AFFAIRS REFERENCE(S):          BCC2017/2583386

MEMBER:R. Skaros

DATE:16 July 2019

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 16 July 2019 at 1:08pm

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Scheme) – Direct Entry stream – Café or Restaurant Manager – subject of an approved nomination – nomination application withdrawn – nominating entity deregistered – position no longer available – Department’s notification obligations – validity of application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 66
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 20 July 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 Direct Entry stream, to work in the nominated position of Café and Restaurant Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.212 and cl.187.233 of Schedule 2 to the Regulations. The delegate noted that the nominating entity had been deregistered and formed the view that the applicant had provided a false declaration in the application regarding the nominated employment.

6. The applicant appeared before the Tribunal on 9 July 2019 to give evidence and present arguments.

7. Prior to the hearing, the Tribunal received a submission from the representative indicating that the delegate had not complied with s.66(2)(d)(ii) of the Act when notifying the applicant of the decision to refuse the visa and as such the applicant has not been validly notified.

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

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 relevant nomination has been approved.     

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. In addition, this criterion also requires that the nomination has been approved and has not been subsequently withdrawn. The position must also be available to the applicant.

12. At the hearing the Tribunal discussed with the applicant the information before it indicating the nomination had not been approved and that the nominating entity had been deregistered. The applicant indicated that he did not become aware that the company had been deregistered. When the Tribunal expressed its surprise that he would not have known about deregistration of the company, the applicant asserted that under the terms of the contract he could only commence employment after he had been granted his visa. The applicant asserted that he provided genuine information in his application about the position and the employment.

13. The Tribunal noted that even if it was to accept that he was not aware that the company that had nominated him had been deregistered, he still did not meet the requirement in cl.187.233 because the position referred to in the nomination was not approved and is no longer available to him. The applicant indicated that he understood this but queried the delegate’s findings about him providing a false statement.

14. The representative submitted that the delegate’s reasons suggest that they were referring to another matter and not the applicant’s case as the findings did not accurately reflect the circumstances of the applicant. The representative also stated that they heard that the nomination had been withdrawn but had not received any correspondence from the Department regarding this. The representative submitted that if the applicant had been informed of the withdrawal of the nomination he would have withdrawn this visa application and lodged another visa application.

15. The Tribunal explained to the applicant that while it has had regard to the Department’s decision, a copy of which was provided to the Tribunal, it is not bound by that decision and that on review the Tribunal is required to undertake its own assessment of the relevant evidence before it and determine for itself whether the particular requirements have been met. The Tribunal noted that the evidence before it indicates that the nominating company has been deregistered.

16. In relation to the submission regarding the withdrawal of the nomination, the Tribunal notes that information on the Department’s electronic records indicates that the nomination of the position in relation to the applicant made by the nominator was withdrawn on 14 March 2019. The Tribunal queried the basis on which the nomination could have been withdrawn, and who had the authority to withdraw the nomination, given the nominating entity had been deregistered some six months prior.   

17. While it was not strictly necessary to put to the applicant the information regarding the purported withdrawal using the procedure in s.359AA, the Tribunal nevertheless considered it prudent to so. Accordingly, the Tribunal informed the applicant that Departmental records indicate that the nomination, against which he made the required declaration in his visa application, had been withdrawn on 14 March 2019. It also noted that a current search of the ASIC Register also indicated that the nominator had been deregistered on 24 September 2018. The Tribunal explained to the applicant the relevance of the information and informed the applicant that if the Tribunal relied on the information it would go on to find that the relevant nomination in relation to him has not been approved, had been withdrawn and that the nominated position was no longer available to him. The Tribunal further explained that it may then go on to find that he does not meet cl.187.233 and that in the circumstances the decision under review would be affirmed.

18. When asked if he required additional time to comment on or respond to the information, the applicant requested 10 minutes to discuss the information with his representative. The Tribunal agreed to grant the applicant 10 minutes and the applicant and the representative left the hearing room. After several minutes, the applicant and the representative returned to the hearing room. The applicant then requested 28 days to provide a response. The Tribunal explained to the applicant that it was of the view that 28 days was an excessive period of time given the issue on which his case turns and the evidence before the Tribunal which suggests that the applicant would not be able to meet the requirement relating to the nomination. The Tribunal nevertheless agreed to delay making its decision until after Friday 12 July 2019 and that if he wished to provide any response regarding the information put to him he could do so by that day.

19. The applicant stated that if he was told about the nominator’s circumstances and was not refused the visa he could have withdrawn his visa application. The Tribunal acknowledges that the Department did not inform the applicant that the nomination had been refused, however, this is not a matter over which the Tribunal has any control. The manner in which the Department processed the visa application is not relevant to the issue on which this case turned.

20. In relation to submissions regarding the invalidity of the notification due to the delegate’s non-compliance with s.66(2)(d)(ii), the Tribunal explained to the applicant and the representative that this provision is normally relied upon by applicants in circumstances where an application for review was not validly made within the prescribed period and where the notification did not comply with s.66(2) such that that the prescribed period within which the applicant could have applied for review will not have started to run. The Tribunal explained to the applicant that in his circumstances he had made a valid application for review within the prescribed period and, notwithstanding any errors he believes were in the notification, he was not disadvantaged by the suggested errors as he had made a valid application for review.

21. When asked if he wants anything further regarding this, the representative argued that the application was invalid. The Tribunal noted that if he was referring to the application for the visa, it did not consider that an error in the notification of the primary decision invalidated the visa application. The Tribunal noted that as long as the applicant had complied with Schedule 1 of the Regulations, which information on the Department’s file suggests he has, then the application for the visa is valid and the Department was required to assess the application against the requirements for the visa and determine whether or not those requirements had been met.   

22. The Tribunal considers that the representative may have misunderstood the operation of s.66(2)(d) in the context of this case. The Tribunal is satisfied that the applicant has made a valid application with the Department for the Class RN visa. The Tribunal is also satisfied that the applicant made a valid application to the Tribunal for review of the decision to refuse him a Class RN visa. The application for review has not been withdrawn. In the circumstances, the Tribunal is required to conduct a review of the Department’s decision.

23. The Tribunal notes that the additional period of time granted to the applicant to respond to or comment on the s.359AA information has now passed. No further information has been received from the applicant. In the circumstances, the Tribunal has decided to proceed to a decision on the information before it.

24. The issue before the Tribunal is whether the associated nomination has been approved. The evidence before the Tribunal indicates that the nomination for the position lodged by Souf Pty Ltd, about which the visa applicant made the required declaration in the visa application, has been refused. In the circumstances, the applicant does not meet the requirements in cl.187.233(3).

25. Further to the above, the evidence before the Tribunal also indicates that Souf Pty Ltd has been deregistered and on this basis the Tribunal also finds that the position is no longer available to the applicant, therefore cl.187.233(5) is also not met. 

26. Given the above, cl.187.233 is therefore not satisfied.

27. 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

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

    R. Skaros
    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

    (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.