Mir Mozam Ali (Migration)

[2020] AATA 1335

Mir Mozam Ali (Migration) [2020] AATA 1335 (28 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mir Mozam Ali

CASE NUMBER:  1912722

HOME AFFAIRS REFERENCE(S):          BCC2017/1996050

MEMBER:Sheridan Lee

DATE:28 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 28 April 2020 at 1:18pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Motor Mechanic – subject of an approved nomination – no response to s 359A invitation – not entitled to appear before the Tribunal – later nomination of a position by a different employer – decision under review affirmed

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

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 June 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 (the Regulations). The primary criteria must be satisfied by at least one applicant. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Motor Mechanic.

4. The nomination application lodged by the applicant’s prospective employer, Mahmood Sons Pty Ltd, was refused by the Department on 10 April 2019. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the position to which the application relates was not the subject of an approved nomination.

5. On 3 April 2020, the Tribunal invited the applicant to comment on or respond to information that it considered would be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were:

   ·The application for approval of the nominated position made by Mahmood Sons Pty Ltd was refused by a delegate of the Minister for Immigration. The company sought a review of that decision but the Tribunal determined that it did not have jurisdiction over the matter. As such, the application for the nominated position has not been approved.

   ·Departmental records indicate that the applicant is not the subject of any other approved nomination.

6. The letter outlined that the information was relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application be the subject of an approved nomination. If the Tribunal were to rely on the information in making its decision, it may find that the position specified in the visa application is not the subject of an approved nomination. This would mean that the applicant does not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision that is under review.

7. The invitation was sent to the applicant’s nominated address provided in connection with the review and advised that if a request for an extension, comments or a response was not provided in writing by 17 April 2020 the Tribunal may make a decision on the review without taking further steps to obtain the comments on or a response to the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The applicant did not provide comments on or a response to the information or request an extension of time within the prescribed period.

9. 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

10. In this case the Tribunal wrote to the applicant under subsection 359A of the Act inviting him to provide comments and/or a response to the Tribunal letter of 3 April 2020. The Tribunal notes that the applicant had the benefit of representation from a registered migration agent to assist with the review application, yet neither the applicant nor their representative provided comments on or a response to the information within the prescribed periods set for this purpose.

11. The Tribunal has had regard to the fact that the visa application was refused by the Department on 13 May 2019 because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations. This clause inter alia requires that the Minister has approved the nomination. The applicant submitted a copy of the primary decision record with the review application. Accordingly, the applicant was aware of the reasons for the visa refusal for more than eleven months.

12. Clause 187.233 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 to which the visa application relates must be the position in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made. That is, a declaration that the position is nominated.

13. This requirement cannot be satisfied by a later nomination of a position made by a different employer. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further.

14. 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

15. 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.

16. As outlined above, 10 April 2019 the nomination application made by the applicant’s prospective employer, Mahmood Sons Pty Ltd, was refused by a delegate of the Minister for Immigration.

17. The Tribunal notes that on 27 April 2020, an online submission was received from the applicant. The submission contained an undated letter from Mohiuddin Ali of D&L Car Care, confirming that the applicant has been employed by the business as a Motor Mechanic since 28 October 2019. No evidence was submitted to suggest that D&L Car Care have made an application to nominate the position and as previously outlined, the requirements of cl.187.233 cannot be satisfied by a later nomination of a position by a different employer.

18. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 187.233 lodged by Mahmood Sons Pty Ltd on behalf of the applicant, has not been approved at the time of the Tribunal's decision. As a result, the Tribunal finds that the first named applicant does not meet the requirements of clause 187.233 at the time of its decision.

19. 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

20. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Sheridan Lee
    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.