MULLICK (Migration)

[2017] AATA 1929

MULLICK (Migration) [2017] AATA 1929 (13 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nizamuddin Mullick
Mrs Mohini Singh

CASE NUMBER:  1710969

DIBP REFERENCE(S):  BCC2016/2553975

MEMBER:Katie Malyon

DATE:13 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 13 October 2017 at 11:38 am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Nomination not approved – No review of nomination application lodged

LEGISLATION

Migration Act 1958, ss 65, 1114C

Migration Regulations 1994, r 1.13A, r 1.13B, r 5.19, cl 187.233

CASES

Hasan v MIBP [2016] FCCA 104
Kaur v MIBP [2017] FCCA 564
Singh v MIBP [2016] FCCA 2229
Singh v MIBP [2017] FCAFC 105

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 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 to the Department of Immigration for the visas on 2 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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Agreement stream.

4. The first named applicant in this case is Indian national Mr Nizamuddin Mullick.  Mr Mullick is seeking a Subclass 187 visa in the Direct Entry stream to work in the nominated position of Retail Buyer ANZSCO 639211.  This stream is designed for persons who have never, or have only briefly, worked in the Australian labour market and are applying for the visa outside Australia or, as in this case, are in Australia but not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because Mr Mullick did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination application also lodged 2 August 2016 by Little Office Pty Ltd (Little Office) for the position of Retail Buyer which relates to him was not approved.  A copy of the delegate's decision was provided to the Tribunal.

6. The applicants were initially invited to attend a hearing on 11 September 2017.  However, Mr Mullick provided a Medical Certificate from his Doctor and so the Tribunal rescheduled the hearing.  Mr Mullick appeared before the Tribunal on 10 October 2017 to give evidence and present arguments.  The applicants were represented in relation to the review by their registered migration agent, who also attended the hearing.

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 this case is whether the Minister (that is, the Department or the Tribunal) has approved the relevant nomination for the purposes of cl.187.233 of Schedule 2 to the Regulations.

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.187.233 of Schedule 2 to the Regulations requires that the position to which the visa application relates is the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination for a position in regional Australia) or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 of the Regulations and which was required to be made as part of the visa application. The provisions of cl.187.233 of Schedule 2 to the Regulations are extracted in the Attachment to this decision.

10. In addition, this criterion also requires that:

    ·the person who will employ the visa applicant is the person who made the 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 visa applicant; and,

    ·the visa application was made no more than 6 months after the nomination of the position was approved.

11. As indicated in the delegate's decision, a copy of which was provided to the Tribunal, the application for approval of the nominated position of Retail Buyer in respect of Mr Mullick made by Little Office was refused by the Department. 

    Hearing

12. Mr Mullick provided the Tribunal with assorted documentation on the day of the hearing including:

    ·an ASIC Form 484 confirming Mr Mullick is now the sole Director and shareholder of Little Office effective 22 September 2017;

    ·a company tax return for Little Office reporting taxable income of $59,610 in the financial year to 30 June 2016; and,

    ·a Statutory Declaration from Mr Mullick dated 10 October 2017 confirming he is the sole Director of Little Office based at Orange in regional New South Wales now that his business partner has moved to Tasmania.  He states that he started the business to sell office-related products, computer maintain (sic) and services because he realised that the community in Orange lacked such services in the area.  He requested a favourable decision so that he can continue his business in Orange.

13. At the commencement of the hearing, the Tribunal explained the requirements in cl.187.233 of Schedule 2 to the Regulations and identified the issue in the review is whether the relevant nomination has been approved. It also observed that, in the recent Full Federal Court of Australia decision in Singh v MIBP,[1] the Court held that the words in cl.187.233 of Schedule 2 to the Regulations refer to a factual event, namely, whether an employer nomination had been made and about which the applicant had made the required declaration in their visa application. As explained by Mortimer J, it is a “once off” process.[2]  The Court observed that even a new nomination in respect of the same position made by the same employer could not be relied upon to meet this Schedule 2 criteria because the new nomination would not be the one in relation to which the declaration in the visa application was made (emphasis added). The Tribunal also noted that it has no discretion and must apply the law.

    [1] [2017] FCAFC 105. See also Kaur v MIBP [2017] FCCA 564; Hasan v MIBP [2016] FCCA 1049; Singh v MIBP [2016] FCCA 2229.

    [2] [2017] FCAFC 105, Mortimer J at [90].

14. During the hearing, the Tribunal showed Mr Mullick his Application for Permanent Employer Sponsored or Nominated Visa from the Department’s file.  In his application, Mr Mullick affirmatively declares 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.  (Note: This application will not be valid if the details provided cannot be matched to a nomination that has been lodged with the Department of Immigration and Border Protection.)”.

15. In his visa application, Mr Mullick provided details of the transaction reference number for the related nomination EGOBLKQ8BV.  Departmental records confirm this is the transaction reference number for the nomination made by Little Office and lodged on the same day as Mr Mullick’s Subclass 187 visa application, 2 August 2016.  It is also the nomination which was refused by the Department on 16 March 2017.

16. After listening to the Tribunal’s outline of the law and seeing the declaration made in his visa application, Mr Mullick told the Tribunal he did not know or appreciate the significance of the need for Little Office’s nomination lodged on 2 August 2016 to be approved or, when it was refused by the Department, to seek review.  He confirmed that his business Little Office had not sought review in the Tribunal of the Department’s refusal of the nomination. 

17. The Tribunal invited comments from Mr Mullick’s representative.  His representative told the Tribunal that he is now working on another strategy to secure a different visa for his clients using Mr Mullick’s wife, the second named applicant Mrs Mohini Singh (as the primary applicant): together they are working out what they can do.

18. On the evidence before it, the Tribunal finds that the nomination application lodged 2 August 2016 by Little Office associated with the position of Retail Buyer for nominee Mr Mullick was refused by the Department on 16 March 2017. Further, no review of the Department’s refusal of that nomination application was lodged with the Tribunal. Therefore, Mr Mullick does not meet cl.187.233(3) of Schedule 2 to the Regulations. Accordingly, cl.187.233 is not met.

19. Mr Mullick 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.

20. There is no evidence before the Tribunal to indicate that the second named applicant, Mrs Mohini Singh, meets the primary requirements for the grant of the visa.

    DECISION

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

    Katie Malyon

    
    Member

    Attachment – Extract from the Migration Regulations 1994
    
    

    Schedule 2

    Part 187

    …

    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.

    oOOo