Mirza (Migration)

[2022] AATA 1478

Mirza (Migration) [2022] AATA 1478 (24 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rabbani Baig Mirza
Mrs Seema Parveen
Miss Aleena Rabbani

REPRESENTATIVE:  Mr Muhammad Iqbal Chaudhry

CASE NUMBER:  1903066

HOME AFFAIRS REFERENCE(S):          BCC2017/1816798

MEMBER:Wan Shum

DATE:24 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 24 March 2022 at 12:47pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – retail manager – subject of approved position nomination – related nomination application refused – no response to invitation to comment or appearance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A(5)
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 187.233(3)

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 22 May 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 Retail Manager (General). This position was nominated by Yellow Trading Pty Ltd, but then on 14 December 2018 the nomination was not approved.

5. As a consequence, the delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations.

6. The applicants and Yellow Trading Pty Ltd sought review of their respective decisions. The applicants were represented in relation to the review.

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 nomination of a position has been approved.

9. This is one of the requirements set out in clause 187.233. 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.

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 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.

11. On the visa application, the applicant provided details of a related nomination, which is the nomination made by the nominator for the position of Retail Manager (General). Under the section ENS/RSMS declarations, the applicant responded ‘Yes’ to the sentence “[h]ave 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”.

12. On 9 February 2022, an officer of the Tribunal wrote to the applicants inviting them to give evidence and present arguments at a hearing on 2 March 2022. A letter inviting their comments on or response to information was also sent and no response was received so the hearing was cancelled. However, as the invitation to comment contained an error, stating that the Tribunal (differently constituted) had found that it did not have jurisdiction in respect of the nomination instead of the decision not to approve the nomination having been affirmed, the applicant was sent a new invitation for a hearing on 24 March 2022 at 11am. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The applicant was also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

13. The applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicants were properly invited to a hearing in accordance with s 379A(5) to the representative’s email address, the invitation has not been returned to sender, and that SMS reminders were sent about the hearing on two separate occasions. An officer of the Tribunal contacted the representative by phone shortly before 11am on the day of the hearing who advised that they were not able to make contact with the applicant and have not been able to reach the applicant since they received the hearing invitation. They confirmed the hearing invitation has been given to the applicant. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

14. The Tribunal has thus proceeded on the information before it, which is that the nomination made by Yellow Trading Pty Ltd has not been approved. Therefore, cl 187.233(3) is not met.

15. The applicant has only sought to satisfy the criteria for Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As one of the primary criteria for the grant of a Subclass 187 visa in the Direct Entry stream has not been met, the decision under review must be affirmed.

    DECISION

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

    Wan Shum
    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.