Mushtaq (Migration)

[2023] AATA 887

Mushtaq (Migration) [2023] AATA 887 (29 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Javed Mushtaq
Mrs Mehwish Javed
Miss Rikza Javed
Miss Aiza Javed

REPRESENTATIVE:  Mr Mubashar Ahmed Nizamani (MARN: 1281745)

CASE NUMBER:  1918289

HOME AFFAIRS REFERENCE(S):          BCC2017/3453042

MEMBER:Stephen Witts

DATE:29 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas. The Tribunal notes that as the primary applicant does not meet the criteria for the grant of the visa that the secondary applicants also do not meet the criteria for the grant of the visa.

Statement made on 29 March 2023 at 9:40am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Transport Company Manager – subject of ­an approved nomination – decision on the papers – 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 21 September 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 (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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position.

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 primary applicant was not the subject of an approved nomination of Transport Company Manager ANZSCO code 149413.

6. The Tribunal notes that the applicants were invited to a hearing on 9 May 2023 to give evidence and present arguments.

7. The Tribunal further notes that on 28 March 2023 the applicant’s representative emailed the Tribunal stating that “my client has advised me not to attend the hearing and the Tribunal can make a decision on the available information.”

8. The Tribunal also notes that included in this communication was a completed hearing response form stating that the applicants will not participate in the hearing and consent to the Tribunal deciding on the papers without taking further steps to allow them to appear.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is the subject of an approved nomination.

    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 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 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 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.

13. The Tribunal notes that the relevant delegate’s decision provided to it by the applicants stated that the primary applicant’s sponsor, Ararat Cabs Pty Ltd, was refused the nomination for the primary applicant on 14 May 2019.

14. The Tribunal notes as above that the applicants have requested that the Tribunal make a decision on the papers.

15. The Tribunal has considered that there is no evidence provided by the applicants in this matter.

16. The Tribunal therefore finds that on that basis the primary applicant is not the subject of an approved nomination.

17. Therefore, cl 187.233 is not met.

    DECISION

18. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas. The Tribunal also finds it as a primary applicant did not meet the criteria for the grant of the visa that the secondary applicant also did not meet the criteria for the grant of the visa.

    Stephen Witts
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.