Malik (Migration)

[2019] AATA 6722

Malik (Migration) [2019] AATA 6722 (9 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nitin Malik
Mrs Christie Agnellous Bhatti

CASE NUMBER:  1802593

HOME AFFAIRS REFERENCE(S):  BCC2016/3141571

MEMBER:Ian Berry

DATE:9 December 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 09 December 2019 at 4:33pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Sales and Marketing Manager – no approved nomination – business not in regional Australia – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

CASES

Hasran v MIAC [2010] FCAFC 40

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 (Act).

2. The applicants applied for the visas on 21 September 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 (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 sales and marketing manager.

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 applicants employer and nominator made a nomination application identifying the applicant as the identified nominee.  On 21 December 2017, the nomination by Global Education Initiative Pty Ltd was refused by the Department.

6. The applicant provided the Tribunal with the a copy of the ministers delegate decision made 24 January 2018.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is the subject of a nomination either approved or under review. 

   Nomination of a position

9. 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.

10. 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 21 December 2017, Global Education Initiative Pty Ltd (nominator) had its nomination application, identifying  the applicant as its nominee, refused.

12. The applicant’s nominator made an application for review of the ministers delegate’s decision to refuse that nomination application.  In that case the ministers delegate refused the application on the basis that the nominator did not satisfy r.5.19(4)(b)(i)because the applicants place of employment with the nominator was at Margaret Street Toowoomba.  The nominator did not provide any evidence of it actively and lawfully operating a business at those premises.

13. The nominator’s application for review was determined on 11 November 2019 with the Tribunal affirming the delegate’s decision.

14. On 14 November 2019 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to provide, to respond in writing, to adverse information namely that on 1 February 2018, the applicant lodged an application for a Regional Employer Nomination (Permanent) visa with the Department of Home Affairs (the Department), and on 7 December 2017 the nominator Global Education Initiative Pty Ltd had its nomination application refused by the Department.  The nominator made an application for review of this decision with the Tribunal on 29 December 2017 which on 11 November 2019, the ministers delegate’s decision was affirmed. 

15. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response was not provided in writing by 28 November 2019, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s comments and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

16. The applicant has not provided the any comment or provided a response within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the [review] applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit [it or him or her] to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the [review] applicant’s comments or response.

17. Therefore, cl.187.233 is not met.

18. 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.

19. The Tribunal must also affirm the decision not to grant leases to the second named applicant, as her application was based on there being members of the applicant’s family unit, and the Tribunal must find that the second named applicant does not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 17 visa.  Nor is there any evidence before the Tribunal to indicate that they meet the primary criteria in their own right.

    DECISION

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

    Ian Berry
    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.