Mukit (Migration)

[2021] AATA 3932

Mukit (Migration) [2021] AATA 3932 (11 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nymul Mukit

CASE NUMBER:  1825539

HOME AFFAIRS REFERENCE(S):          BCC2016/3884032

MEMBER:Michelle East

DATE:11 October 2021

PLACE OF DECISION:  Perth

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

Statement made on 11 October 2021 at 2:12pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – refusal of related nomination application affirmed on review – no contact between applicant and sponsor for some time – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 November 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the nomination lodged by the nominator was not approved.

6. The applicant appeared before the Tribunal on 11 October 2021 to give evidence and present arguments.

7. 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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal also asked the applicant at the hearing if he was happy to proceed by telephone and he confirmed he was.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

   Nomination of a position

10. 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.

11. 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.

12. On 9 September 2021 the Tribunal sent the applicant a letter pursuant to section 359A of the Act advising him of the following particulars that would be the reason or part of the reason for affirming the decision under review:

    On 3 August 2018, the Tribunal received an application for review of the decision of the Department of Home Affairs to refuse a nomination in respect of SUBCONTINENTAL HOSPITALITY GROUP PTY LTD.  On 14 May 2021, the Tribunal affirmed the Department’s decision to refuse the nomination.  Consequently, the decision made by the Department of Home Affairs on 13 July 2018, to refuse the nomination, stands.

13. The applicant was advised that the information was relevant to the review because in order to satisfy the requirements of clause 187.233(2) of Schedule 2 to the Regulations, it requires the applicant to have a nomination which has been approved by the Minister.

14. The applicant was requested to respond by 23 September 2021 and he responded as follows:

    I do not have any information regarding Sub Continental Hospitality Group PTY LTD.  My sponsor last contacted me on 4^th May 2021 to inform that AAT tried to make contact with him regarding nomination but he did not respond.  Since that day I have not been able to reach him.  I have tried & failed to make any contact with him.  So I do not know what to do now.

15. The applicant also provided a submission outlining his personal circumstances dated 1 October 2021, extracts of text messages with his migration agent, a letter of support from community members of his mosque, a letter in support of his ‘carer visa’ application, probate documents relating to his uncle’s will and various academic completion documents.

16. The Tribunal explained the above provisions to the applicant and asked him if he had anything further to add.  The applicant said that he thought the nomination application didn’t succeed because his sponsor did not provide the financial information to the delegate.  He said he had repeatedly tried to contact his sponsor but had no success in doing so.

17. Whilst the Tribunal has some sympathy for the applicant, unfortunately, without a valid and approved nomination the Tribunal is unable to come to a favourable decision.

18. Based on the evidence before it, the Tribunal is not satisfied at the time of its decision that there is an approved nomination. Therefore cl.187.233(3) is not met.

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.

    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.