Mahmud (Migration)

[2022] AATA 4073

Mahmud (Migration) [2022] AATA 4073 (24 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tarek Mahmud
Ms Meem Mehrin Islam

REPRESENTATIVE:  Ms Amanda Love (MARN: 0638911)

CASE NUMBER:  1932876

HOME AFFAIRS REFERENCE(S):          BCC2018/515162

MEMBER:George Hallwood

DATE:24 November 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.233 of Schedule 2 to the Regulations.

Statement made on 24 November 2022 at 12:02pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – nominated as accountant, not housekeeping manager – skills assessment in relation to applicant’s qualifications, not position – agent’s logical approach to completing poorly constructed form – applicant’s experience and ongoing employment in position – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), 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 (Cth) (the Act).

2. The applicants applied for the visas on 31 August 2018. 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 (Cth) (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 the Direct Entry stream.

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 delegate found the applicant had not nominated a position as declared in the nomination associated with this visa application.

6. The applicants appeared before the Tribunal on 16 November 2022 to give evidence and present arguments.

7. The applicants were represented in relation to the review.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant can satisfy the requirements set out in cl. 187.233.

   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 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 reg 1.13A and reg 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. Regional Sponsored Migration Scheme visa’s allow skilled workers who are nominated by their employer in regional Australia, to live and work in Australia permanently. The basic eligibility requirements are to be nominated by an approved Australian employer for a job in regional Australia, be under 45 years of age, and to meet the skills, qualifications and English language requirements.

13. In this matter, the applicant’s migration agent has submitted that she incorrectly nominated the applicant for the occupation of Accountant by entering details related to a skill assessment that had been completed in relation to Mr Mahmud’s qualifications, when it was always the intent to nominate him for the position of Housekeeping Manager. The Tribunal is not satisfied that the applicant’s migration agent made a mistake for reasons provided below.

14. The corresponding application for approval of a nomination in the Direct Entry Stream by AHS Hospitality Pty Ltd (the nominator) describes the position to be filled as Housekeeping Manager. This nomination application was lodged on 29 January 2018 and includes Mr Tarek Mahmud as the nominated person. The nominee’s application which is now before the Tribunal was lodged two days later on 31 January 2018.

15. Prior to both the nomination of the position by the nominator and the visa application by the nominee, the nominator had sought to obtain Regional Certifying Body advice for the the Regional Sponsored Migration Scheme by the Department of Trade, Business and Innovation NT in relation to the job titled Housekeeping Manager and detailing the nominee as Mr Tarek Mahmud. This advice dated 21 December 2017 was that the nomination satisfied the requirements for the purposes of regulation 5.19(4).

16. At the hearing Mr Mahmud confirmed that he had always expected to be approved as a Housekeeping Manager, not as an Accountant. The Tribunal is satisfied that the applicant’s evidence is truthful.

17. The applicant provided a resume with their visa application. The resume provides a history of employment in hospitality roles and describes the applicant’s employment objectives:

    To pursue a rewarding career in Business and General Management where my varied skills can be profitably utilized to achieve corporate objectives. I have experience in hospitality industry for the past 4 years specifically in housekeeping operation and management.

18. In his visa application, while it lists Accountant (General) under the heading “Skills assessment details”, the applicant goes on to list three positions under the heading “Employment History”, two as Executive Housekeeping Manager and one as Assistant Housekeeping Manager which he describes as being employment related to the nominated position. It is easy to see how the applicant’s agent could have entered the information the way they did, although the Tribunal is not satisfied it was in error, it was a logical approach to completing an inadequate form.

19. By treating the information described as ‘Nominated occupation’ under the skills assessment details heading as the ‘nominated occupation’, the Tribunal is satisfied that it is the delegate that erred, not the agent who assisted with the completion of the form.

20. In a submission dated 22 November 2022 provided to the Tribunal by the agent after the hearing, the applicant points out that the declarations under the heading on pages 15 and 16 of the Form 1408 visa application, contain a declaration relating to the nominated position. This declaration states:

    The applicant declares that they: …

    Have declared that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection (Note: This application will not be valid if the details provided cannot be matched to a nomination that has been lodged with the Department of Immigration and Border Protection).

21. The applicant answered ‘Yes’ to this question.

22. For all of these reasons the Tribunal is satisfied that the applicant always intended to, and did apply for a visa in relation to the nominated position of Housekeeping Manager. The applicant did not state that he was applying for a visa in relation to a nominated position of Accountant, but simply told the truth about having had a skills assessment done in relation to his accounting qualifications using what is a poorly constructed Form.

23. The Tribunal is satisfied that the position to which the application relates, Housekeeping Manager, is the subject of an application for approval of a nomination by AHS Australia in the Direct Entry stream, located in Darwin, Northern Territory which is in regional Australia.

24. Further, the Tribunal is satisfied that the position is the one that was the subject of the declaration made as part of the current visa application identifying the applicant, Mr Mahmud, in relation to the position, Housekeeping Manager.

25. A letter from Ms Katelyn Judge of AHS dated 21 November 2022 confirms Mr Mahamud’s ongoing employment with AHS as a Housekeeping Manager.

26. Based on documentary evidence on file together with Mr Mahamud’s oral evidence before the Tribunal, I am satisfied that:

    ·the person who will employ the applicant, AHS Hospitality Pty Ltd, 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 reg 1.13A and reg 1.13B);

    ·the position of Housekeeping Manager with AHS Hospitality Pty Ltd in Darwin is still available to the applicant, Mr Mahamud; and

    ·the visa application was made no more than six months after the nomination of the position was approved.

27. Therefore, cl 187.233 is met.

    CONCLUDING PARAGRAPHS

28. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

29. Because the secondary applicant, Ms Islam, had her application refused because she was not a member of a family unit of a person holding a subclass 187 visa, I recommend her visa application also be reconsidered together with that of the primary visa applicant.

    decision

30. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233 of Schedule 2 to the Regulations.

    George Hallwood
    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.