Mohammed (Migration)

[2020] AATA 756

Mohammed (Migration) [2020] AATA 756 (17 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Misbahuddin Mohammed

CASE NUMBER:  1916139

HOME AFFAIRS REFERENCE(S):          BCC2017/2945317

MEMBER:Phoebe Dunn

DATE:17 March 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 17 March 2020 at 9:25am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Chef – subject of an approved nomination – nomination application withdrawn – decision under review affirmed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 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 16 August 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. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Chef (ANZSCO 351311).

5. The delegate refused to grant the visa because the delegate stated that the applicant did not meet cl.187.233(4) of Schedule 2 to the Regulations because the related nomination, being the nomination referred to in cl.187.233(1), was withdrawn on 12 April 2019, and as “the appointment has been withdrawn, regulation 187.233(4) is not met.”

6. The applicant appeared before the Tribunal on 10 March 2020 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

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 there is an approved nomination as required by cl.187.233(3) of the Regulations. The Tribunal notes that the delegate refused the application on the basis of cl.187.233(4) of the Regulations on the basis that the application had been withdrawn. The Tribunal notes that the withdrawal occurred prior to a determination being made on the nomination application by the Department.  As such, on review, the Tribunal is considering whether there is an approved nomination.

9. At the hearing, the Tribunal put information to the applicant under s.359AA of the Act that would be the reason, or part of the reason, for affirming the decision that is under review.  The Tribunal advised the applicant that the Tribunal was raising the information with the applicant, not because the Tribunal has already made up its mind in relation to the information, but to give the applicant an opportunity to comment on or respond to the information in order to help the Tribunal to make up its mind.  The Tribunal explained the relevance of the information and the consequences of it.

10. The particulars of the information are that the application for approval of the nominated position made by Prime Sector Pty Ltd in respect of the applicant’s Subclass 187 visa application was withdrawn on 12 April 2019. A search of Departmental records indicated that the applicant is not currently the subject of a nomination application by an approved standard business sponsor.

11. The Tribunal explained that this information is relevant to the review because it suggests that there is not an approved nomination on foot in respect of the applicant, and that it is a requirement for the grant of a Subclass 187 visa that the position nominated in the visa application is the subject of an approved nomination. The Tribunal further explained that if the Tribunal relied on this information in making its decision, the Tribunal may find that the position specified in the visa application is not the subject of an approved nomination, which is a requirement of cl.187.233(3) of Schedule 2 to the Regulations, and that this would mean that the applicant does not satisfy a requirement for the grant of the visa, and that the Tribunal must affirm the decision that is under review.

12. The Tribunal explained that this would be the reason, or part of the reason, for affirming the delegate’s decision to refuse the applicant’s visa application. The Tribunal invited the applicant to comment on or respond to the information, or to seek additional time to comment on or respond to the information.  The applicant did not seek additional time to comment or respond.

13. In response, the applicant gave some background to his current circumstances. The applicant stated that he understood that as his employer had withdrawn the application, there was no approved nomination and he did not meet the criteria for the grant of the Subclass 187 visa.

14. The applicant stated that he worked for the nominator from 18 June 2018 to December 2018, while the nomination and visa applications were being processed. The applicant stated that the application took a long time to be processed and that it put stress and pressure on his employer because the Department kept requesting additional documents to be provided. The applicant stated that at the end of January 2019, he went overseas to visit his family, and when he returned in March 2019 his employer had withdrawn the application because it had become too hard and had taken too long.  The applicant stated that he spoke to his employer and he is willing to reconsider, but needs time to lodge a fresh application.  The applicant became emotional and stated that the Department doesn’t take action to protect workers who are not citizens and only looks after the employers, and that everyone is suffering because of the time taken by the Department to process what he considers to be routine applications. He stated that nominees are slaves to employers and are left with no options if employers withdraw applications and there are no consequences for the employer. He stated that he thought he would get justice from the Tribunal.

15. The Tribunal reiterated that as the nomination application had been withdrawn, there was no approved nomination which is a requirement for the grant of the Subclass 187 visa, and that lodging a new application would not enable the applicant to meet this criteria. The withdrawal of the nomination meant that the applicant could not meet the requirement that there be an approved nomination, which is a primary criteria for the grant of the visa.

    Nomination of a position

16. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. 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.

17. 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 of the Regulations); 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.

18. In this case, the nomination lodged by the nominator, being the nomination referred to in cl.187.233(1) in respect of the applicant, was withdrawn on 12 April 2019.  As such, there is no approved nomination as required under cl.187.233(3), and a new nomination application will not enable the applicant to meet this criteria.  Accordingly, cl.187.233(3) is not met.

19. Therefore, cl.187.233 is not met.

    DECISION

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

    Phoebe Dunn
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.