Mazharuddin (Migration) - [2021] AATA 5674

Mazharuddin (Migration) [2021] AATA 5674 (1 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mohammed Mazharuddin
Mr Mohammed Hamza Mazhar
Mrs Nusrath Sultana
Mr Khaled Mazhar
Miss Amena Mazhar
CASE NUMBER:  2100437
HOME AFFAIRS REFERENCE(S):          BCC2018/2690462
MEMBER:C. Packer
DATE:1 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 01 June 2021 at 3:59pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – web developer – subject of approved position nomination – related nomination application refused and no application for review made – currently working for another employer – newborn child and wife’s health – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 1, para 1114C(3)(d), Schedule 2, 187.233
CASES
Hasan v MIBP [2016] FCCA 1049
Singh v MIBP [2017] FCAFC 105
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicants applied for the visas on 18 July 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Web developer.
The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations as on 20 May 2020 the nomination lodged by Burch Grove Group Pty Ltd, being the nomination referred to in paragraph 187.233 was refused by a delegate of the Minister.
The applicant appeared by phone before the Tribunal on 1 June 2021 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nomination of a position
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mazharuddin (Migration)

Details

AGLC: Mazharuddin (Migration) [2021] AATA 5674
Case: [2021] AATA 5674
Decision Date: 1 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Mazharuddin concerning his application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the direct entry stream. The dispute arose because the nomination application for the position of Web Developer, made by BURCH GROVE GROUP PTY LTD, was refused by a delegate of the Minister on 20 May 2020, and no application for review of this refusal was made by the nominator. Mr. Mazharuddin was currently working for a different employer and had personal circumstances involving a newborn child and his wife's health.

The primary legal issue before the Tribunal was whether Mr. Mazharuddin met the essential criteria for the Subclass 187 visa in the direct entry stream, specifically concerning the requirement for an approved nomination. The Tribunal was required to determine if the refusal of the nominator's application, without a subsequent review, meant that the criterion of an "approved nomination" could not be satisfied. This also involved considering whether a later nomination by a different employer, or even a later nomination by the same employer for the same position, could satisfy the Schedule 2 criteria.

The Tribunal reasoned that clause 187.233 of the Migration Regulations, as applicable, mandates that the position to which the visa application relates must be the subject of an approved nomination. The Tribunal noted that the nominator's application for approval of the Web Developer position was refused and that no review of this refusal was sought. Consequently, there was no approved nomination in place that concerned Mr. Mazharuddin. The Tribunal relied on previous authority, including *Hasan v MIBP* [2016] FCCA 1049 and *Singh v MIBP* [2017] FCAFC 105, which established that a refused nomination cannot be relied upon to meet the visa criteria unless a review of that decision is pending. As this essential criterion was not met, the Tribunal concluded that the decision under review must be affirmed.

The Tribunal affirmed the decision not to grant Mr. Mazharuddin the Regional Employer Nomination (Permanent) (Class RN) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCENomination of a position 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 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 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. The Tribunal’s letter of 11 May 2021 invited the applicant to comment or respond to information, and stated in part:The particulars of the information are: On 18 July 2018 BURCH GROVE GROUP PTY LTD (your nominator) made an application listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa). The position was said to be Web Developer and nominated you. However, on 20 May 2020 a delegate of the Minister rejected the application. The nominator did not seek review of that decision with the AAT, this means that the nominator’s application for the nominated position has not been approved. This means that there is no approved nomination, and no review of that nomination refusal decision pending, that concerns you.This information is relevant to the review because without an approved nomination,you will not meet an essential criterion for the grant of the visa.It is a requirement for both the Temporary Residence Transition and Direct Entrystreams (cls 187.223 and 187.233 respectively) that the position to which the visaapplication relates is the position in relation to which the declaration mentioned inparagraph 1114C(3)(d) of Schedule 1 was made. This requirement could not besatisfied by a later nomination of a position made by a different employer, and oncurrent authority a nomination in respect of the same position made by the sameemployer could also not be relied on to meet these Schedule 2 criteria. [see Hasan vMIBP [2016] FCCA 1049; Singh v MIBP [2017] FCAFC 105]. It follows that where anomination is refused, the visa applicant will not meet cl.187.233 unless there is also a review of that decision pending.If we rely on this information in making our decision, the decision under review must be affirmed.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.C. PackerMemberATTACHMENT A187.233(1) The position to which the application relates is the position:(a)nominated in an application for approval that:(i)identifies the applicant in relation to the position; and(ii)is made in relation to a visa in a Direct Entry stream; and(iii)seeks to meet the requirements of subregulation 5.19(12); 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.

Ratio Decidendi

Legal Principle Established

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