Mortazavi (Migration)

[2020] AATA 4215

Mortazavi (Migration) [2020] AATA 4215 (4 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ladan Mortazavi
Mr Mohammad Banan
Mr Roham Banan
Miss Yaas Banan

CASE NUMBER:  1732025

HOME AFFAIRS REFERENCE(S):          BCC2017/546791

MEMBER:Michelle East

DATE:4 August 2020

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 04 August 2020 at 2:37pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Private Teacher and Tutor – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, r 1.13; cls 187.233, 187.311

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 Immigration and Border Protection 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 9 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 (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 Private Teacher and Tutor nec (ANZSCO 249299).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination associated with the visa application was not approved.

6. The applicant appeared before the Tribunal on 18 June 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone.  The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

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 applicant is the subject of an approved nomination.

   Nomination of a position

9. 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.

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 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.

11. The applicant had provided to the Tribunal a copy of the delegate’s decision record.  It states that the nominator, Aryana iHelp Centre Pty Ltd lodged an application for approval of a nomination.  The nomination application was refused by the delegate on 18 October 2017.  The delegate in this case therefore concluded that the applicant does not meet cl.187.233(3) which requires that the Minister has approved the relevant nomination.

12. Aryana iHelp Centre Pty Ltd sought review of the decision to refuse the nomination.  The Tribunal combined the hearings for the nominator and the applicant.  The Tribunal explained to the applicant that if it affirmed the decision to refuse to approve the nomination, the applicant would not meet the requirement that the nomination had been approved.  It explained that in those circumstances, it would write to the applicant seeking her comments or response.

13. On 17 July 2020 the Tribunal affirmed the decision to refuse to approve the nomination application made by Aryana iHelp Centre Pty Ltd, for approval of a nomination in the Direct Entry stream.

14. On 20 July 2020, the Tribunal wrote to the applicant under s.359A inviting her comments on, or response to, the information that on 17 July 2020 the Tribunal affirmed the decision to refuse the nomination application made by Aryana iHelp Centre Pty Ltd.  The Tribunal explained that this information is relevant because if relied on, the Tribunal would find that the applicant does not meet cl.187.233(3) and it would affirm the Department’s decision.  The response was due by 3 August 2020.

15. No response was received within the timeframe given.

16. On the basis of the evidence before it, the Tribunal finds that the nomination made by Aryana iHelp Centre Pty Ltd, the nomination referred to in cl.187.233(1) has been refused.  Therefore, cl.187.233(3) is not met.

17. 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.

18. Further, because the first named applicant is unable to satisfy cl.187.233(1), the secondary applicants are unable to satisfy cl.187.311 because they are not members of the family unit of a person who holds a subclass 187 visa and therefore 187.311 is not satisfied.  Therefore the decision in relation to the secondary applicants must be affirmed.

    DECISION

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

    Michelle East
    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.