Mohammed (Migration)

[2020] AATA 1957

Mohammed (Migration) [2020] AATA 1957 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shafi Ullah Mohammed
Mrs Fouzia Tabassum
Mr Khaleel Raza Mohammed
Mr Hussain Raza Mohammed

CASE NUMBER:  1801376

HOME AFFAIRS REFERENCE(S):          BCC2016/2803991

MEMBER:Jennifer Cripps Watts

DATE:28 May 2020

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 28 May 2020 at 1:07pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – employer’s position nomination refused – no jurisdiction to review refusal of nomination – attempts to find new sponsor – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 (the delegate) to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 24 August 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 (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 Direct Entry stream, to work in the nominated position of Retail Manager (General).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, because there was not a related approved nomination.

6. The applicant appeared before the Tribunal on 28 May 2020 to give evidence and present arguments.  He confirmed that his wife, a secondary applicant, was aware of the hearing but that she did not wish to give oral evidence.  The applicant also indicated that a witness would be available to give oral evidence, but at the end of the hearing confirmed that he no longer required the witness to give evidence.

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 for the position of Retail Manager (General) specified in the application, by JMERSC Pty Ltd atf GSKC Family Trust, has been approved.

9. At the beginning of the hearing, the Tribunal informed the applicant that due to the COVID-19 situation the Tribunal, Federal and other courts and tribunals are hearing matters by phone where it is appropriate to do so and that his case had been identified as suitable.  The applicant was told that it was very important that we were both confident that we could hear and understand each other clearly and, if he did not understand or hear a question, he should inform the Tribunal and the matter could be explained, clarified or rephrased.  From time to time matters were clarified, which is not unusual in a migration hearing.  It was evident that the applicant found discussing his visa issues at the hearing to be difficult.  He was encouraged not to rush his evidence and to speak when he felt ready.  The Tribunal is satisfied that the phone lines were clear and that all who participated in the hearing could be heard and understood. 

10. The Tribunal has considered relevant documentary and oral evidence material to the issue on the review in reaching its decision.

    Nomination of a position

11. 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.

12. 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.

13. Department records indicate that the nomination relating to the visa application and the position of Retail Manager (General), by JMERSC Pty Ltd atf GSKC Family Trust, was refused on 22 December 2017.  They lodged a review application and, on 10 March 2020, the Tribunal (differently constituted), found it had no jurisdiction to review the application.

14. On 7 May 2020, the Tribunal sent the applicant a letter particularising adverse information relating to the nomination and explaining why this would be a reason or part of the reason for affirming the decision to refuse the visa; relevantly, the applicant was informed that it appeared his application was not the subject of an approved nomination by JMERSC Pty Ltd atf GSKC Family Trust for the position of Retail Manager (General).  It was requested in the letter that the applicant respond to the information in writing no later than 21 May 2020, or within any extended timeframe granted.

15. The applicant provided a written response on 21 May 2020.  The Tribunal acknowledges that he has provided detailed information about his arrival in Australia in 2008 as a student, the study he has completed and where he has worked.  It is acknowledged that the applicant says he has ‘desperately tried to find a new sponsorship’, focusing on rural areas, and that his children are settled here.  In addition, the applicant says that he is now without a sponsor through no fault of his own because he was ‘a victim of (his) employer’s acts or omissions’, referring to the employer whose nomination related to the visa application.  However, these matters are not material to the issue on the review. 

16. In addition, in his written submission, the applicant claims there are ‘compelling or compassionate reasons to remain in Australia’.  The Tribunal acknowledges the submission and the information contained in it, but there is no discretion to waive the cl.187.233 criteria.  This was explained to the applicant at the hearing and he indicated that he understood.

17. The applicant confirmed in his oral evidence, consistent with what the Departmental records indicate, that there is no approved nomination for the position of Retail Manager by JMERSC Pty Ltd atf GSKC Family Trust relating to the visa application that is the subject of the review.

18. The Tribunal has considered relevant information and evidence material to the issue on the review.  The applicant does not meet cl.187.233.

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.

    Secondary applicants

20. The Tribunal has affirmed the decision to refuse the applicant’s visa and, as the applicant is not a person who has been granted and holds a Subclass 187 visa, the Tribunal also affirms the decision to refuse the visas of the secondary applicants, Fouzia Tabassum, Khaleel Raza Mohammed and Hussain Raza Mohammed.

    DECISION

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

    Jennifer Cripps Watts
    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.