Mazher (Migration)

[2021] AATA 5592

Mazher (Migration) [2021] AATA 5592 (1 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Syed Shiraz Mazher
Mrs Yusra Anis
Ms Syeda Inaaya Mazher

CASE NUMBER:  1836013

HOME AFFAIRS REFERENCE(S):          BCC2017/780936

MEMBER:P. Maishman

DATE:1 December 2021

PLACE OF DECISION:  Perth

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

Statement made on 01 December 2021 at 1:30pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – sales and marketing manager – subject of approved position nomination – related nomination application refused – combined hearing of nomination and visa reviews – nomination refusal affirmed – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

CASE
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 (Cth) (the Act).

2. The applicants applied for the visas on 27 February 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 (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, to work in the nominated position of Sales and Marketing Manager - 131112.

5. The delegate refused to grant the visas because the first named applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the application by Buzzad Marketing Pty Ltd for nomination of the position to which the visa application relates was not approved.

6. The first named applicant appeared before the Tribunal on 28 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Muhammad Ali Fawad, the director of Buzzad Marketing Pty Ltd.

7. The hearing was a combined hearing with Buzzad Marketing Pty Ltd. The parties agreed at the commencement of the hearing the combined hearing was suitable. 

8. The applicants were represented in relation to the review by their registered migration agent.

9. On 16 November 2021 the Tribunal wrote to the first named applicant pursuant to s 359A of the Act. The Tribunal informed the first named applicant the application by Buzzad Marketing Pty Ltd for approval of the nominated position was refused by the delegate and the Tribunal had recently affirmed the decision. The Tribunal explained this meant the nominated position was not approved and this was relevant to his review because approval of the nomination was a requirement for the grant of the visa. The Tribunal explained if it found the position specified in his application was not the subject of an approved nomination he would not satisfy a requirement for the grant of the visa. That would be the reason, or part of the reason, to affirm the decision under review. The Tribunal invited the review applicant to provide comments in writing.

10. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 30 November 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

11. The review applicant has not provided the comments 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 again 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 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 comments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The Tribunal had before it a copy of the Department’s file.

14. The first named applicant gave the Tribunal a copy of the delegate’s decision record with the review application. The Tribunal received a signed letter from the first named applicant on 21 October 2021 outlining his skills and work history.

15. At hearing the Tribunal explained that the nomination of Buzzad Marketing Pty Ltd must be approved for the visa application to succeed. The Tribunal outlined the procedure it would follow if its decision in respect of Buzzad Marketing was adverse to the applicant’s matter.

16. On 16 November 2021 the Tribunal informed the first named applicant it had affirmed the delegate’s decision to refuse the application by Buzzad Marketing Pty Ltd for approval of the nominated position. The Tribunal invited the first named applicant to respond in writing to the adverse information that the nomination was not approved. The Tribunal did not receive a response to the invitation.

17. Based on the Tribunal’s explanation to the first named applicant at hearing, and the written explanation in the Tribunals notice of 16 November 2021, the Tribunal is satisfied the first named applicant understands why Buzzad Marketing Pty Ltd’s nomination application not being approved is relevant to his review and the consequence of that information being relied on.               

18. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

19. 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.

20. 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.

21. In this case the applicant applied for a Subclass 187 visa based on the nomination application lodged by Buzzad Marketing Pty Ltd, being the nomination referred to in cl 187.233(1) of Schedule 2 to the Regulations. The nomination application was lodged with the Department on 27 February 2017. The nomination application was refused by a delegate of the Minister on 22 October 2018. Consequently, on 21 November 2018 the applicant's Subclass 187 visa was refused by the delegate on the basis that there was no approved nomination.

22. Buzzad Marketing Pty Ltd applied to the Tribunal for review of the decision made on 22 October 2018 to refuse the nomination application. On 15 November 2021 the Tribunal affirmed the decision to refuse the nomination application. This means the matter has been finally determined and there is no approved nomination as required under cl 187.233(3) of Schedule 2 to the Regulations.

23. Accordingly, cl 187.233 is not met.

24. 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. There is no evidence before the Tribunal that the secondary applicants claim to meet the 'Common criteria', as well as the criteria of one of two alternative visa streams.  

    decision

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

    P. Maishman
    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.