Khatibi (Migration)

[2018] AATA 3870

Khatibi (Migration) [2018] AATA 3870 (19 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Haleh Khatibi
Mr Parviz Nasiri
Ms Nikan Nasiri
Ms Tina Nasiri

CASE NUMBER:  1701297

DIBP REFERENCE(S):  BCC2016/223427

MEMBER:Mr S Norman

DATE:19 September 2018

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 19 September 2018 at 2:32pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry scheme – subject of a valid employer nomination – Tribunal affirmed nomination refusal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 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 Immigration and Border Protection 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 15 January 2016. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (the principal visa applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (General) (ANZSCO – 142111) at Belconnen, ACT.[1] This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

   [1] Department file – folio 228.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application had been refused.

6. The applicants (Mrs Haleh Khatibi –the owner of the nominating business - Mr Parviz Nasiri [her husband], and Ms Tina Nasiri [her daughter]) appeared at the Tribunal hearing. Though an opportunity was provided to all, only Mrs Khatibi and Mr Nasiri wished to provide evidence at hearing. The Tribunal made no formal request for further information. However, as Ms Nikan Nasiri was identified as a witness who would give evidence at hearing (though she decided not to attend the hearing as she had ‘classes’ scheduled for that day), the Tribunal said it would not finalise its decision prior to COB (5pm) Monday 26 August 2018, and it would consider any evidence lodged before that time (an offer was also made to extend the time in which further evidence could be lodged – though no such request was received).

7. The Tribunal hearing was conducted without the assistance of an interpreter in the Persian and English languages. After considering the evidence at hearing, the Tribunal is satisfied the applicants were provided a meaningful opportunity to give evidence and submissions.

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 applicants meet cl.187.233 of Schedule 2 to the Regulations.

   Nomination of a position

10. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii). 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.

11. On 28 November 2016, a decision was made to refuse the nomination application lodged by the nominator (Delicate Roses P/L). By letter of 28 November 2016, the Department issued a letter to the principal visa applicant (the applicant), seeking her comment on this matter. After the timeframe within which to respond had passed, and as contrary evidence had not been lodged, the delegate determined that cl.187.233(3) was not met; and the applicant did not satisfy cl.187.233. 

12. Next, the delegate assessed the visa application in the other streams within the visa subclass. Regarding the Temporary Residence Transition Stream, the delegate noted that pursuant to cl.187.223(1)(a), the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the nomination only sought to meet the requirements of r.5.19(4), the applicant was not found to meet the criteria in cl.187.223. The delegate also assessed the application under the Agreement stream. However and again, the nomination only sought to meet the requirements of r.5.19(4), and therefore, the applicant did not meet the criteria in cl.187.242.

13. Next, the delegate also considered the visa application pursuant to the secondary criteria (cl.187.311). After noting neither the applicant nor any member of her family is a member of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, the delegate found that cl.187.311 was not satisfied.

14. As clauses 187.233, 187.223, 187.242 & 187.311 were not satisfied, the delegate refused the visa application for a Employer Nomination Scheme (subclass 187) visa.

15. At the hearing, the Tribunal noted that the satisfaction of cl.187.233 may be critical to the visa application. Accordingly, the hearing mainly centred on the nomination approval application (AAT # 1621267), and which hearing was held at the same time and place.

16. Clause 186.233 requires inter alia that the position to which the application relates be the subject of an application for approval (or an approval) of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application.

17. By s.359A letter dated 4 September 2018 (dispatched by email to the applicant’s authorised address for service), the applicant was advised that subject to their comment or response, the following may be the reason, or a part of the reason, for affirming the decisions under review:

    ·On 4 September 2018, the Tribunal affirmed the Department's decision not to approve the nomination in relation to you made by your nominating employer (Delicate Roses Pty Ltd).

    The above information is relevant because cl.187.233(3) requires that the nomination made in relation to you by your nominating employer has been approved. If the Tribunal relies on this information it may find that the nomination in relation to you has not been approved and consequently the decision under review would be affirmed.

    You are invited to give comments on or respond to the above information in writing.
    Your comments or response should be received by 18 September 2018…

18. At the time and date of this decision, no response had been received by the Tribunal. That being said, as the delegate’s decision to refuse the nomination approval has been affirmed by the Tribunal, cl.186.233(3) has not been met. After considering all the evidence, the Tribunal is also not satisfied that cl.186.233 is otherwise met. Therefore, cl.186.233 is not met.

19. Next, the applicant has only sought to satisfy the criteria for a Subclass 186 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.

20. Finally, cl.186.311 requires inter alia that an applicant is a member of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of that visa. As neither the applicant, nor any family member, has satisfied the primary criteria for the grant of the subclass 186 visa, I am not satisfied that cl.186.311 has been met.

    DECISION

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

    Mr S Norman
    Member