Muzammil (Migration)

[2020] AATA 2434

Muzammil (Migration) [2020] AATA 2434 (30 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Muzammil

CASE NUMBER:  1902438

HOME AFFAIRS REFERENCE(S):          BCC2017/1954566

MEMBER:Jennifer Cripps Watts

DATE:30 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 30 March 2020 at 12:03pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Café or Restaurant Manager – no approved nomination – decision under review affirmed

LEGISLATION

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

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 (the delegate) 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 2 June 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 Direct Entry stream, to work in the nominated position of Café or Restaurant Manager.

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 Minister did not approve the nomination relating to the applicant’s Subclass 187 visa application (that is the subject of this review).

6. The applicant was invited in writing to attend a scheduled hearing before the Tribunal on 8 April 2020.  On 6 March 2020, a letter was sent to the applicant, in compliance with s.359A of the Act, requiring a response no later than the specified date of 24 March 2020 or by any extended timeframe granted.  The applicant did not respond to the letter or the information in it.  Prior to 25 March 2020, he did not request an extension of time to respond.  In the letter sent by the Tribunal it was included, in summary, that if no response was received the applicant would lose his right to attend a hearing to give oral evidence, the hearing would be cancelled and the Tribunal would make a decision on the evidence before it.  On 24 March 2020, the Tribunal wrote to the applicant explaining these circumstances and advising that the scheduled hearing (on 8 April 2020) had been cancelled.  The applicant was informed, as a matter of fairness, that the Tribunal would not make a decision before 27 March 2020 and that he could provide additional information he wished to be considered.  The applicant wrote to the Tribunal by email, received on Monday 30 March 2020, requesting a postponement of his hearing, but otherwise provide no information material to the issue on the review. 

7. In the email sent by the applicant, dated 29 March 2020, he requested a postponement of the (by then cancelled) hearing on the basis, essentially, that:

   a.Due to the coronavirus he is not going out and is ‘depressed mentally’

   b.‘Due to normal cough and sickness about 3 weeks back’ he has been quarantined with his room mates and has not had access to his phone

   c.He only saw ‘all the emails’ (sent to him by the Tribunal relating to the review) ‘today’ (Sunday 29 March 2020)

   d.He is ‘jobless’ and under mental, physical and financial stress. 

8. The Tribunal acknowledges that these are uncertain and difficult times and that people are worried about the future.  However, to be granted a Subclass 187 visa, an applicant must have a sponsor who has an approved nomination to meet the primary criteria:  cl.187.233(3).  That sponsor must be the same one they included in their application.  In this applicant’s case, the sponsor was Feather Dart Group Pty Ltd.   There is no provision in the Regulations that the requirement that an applicant meets cl.187.233 can be waived; in this case, the Tribunal has no discretion to consider compelling or compassionate circumstances. 

9. In the circumstances, the Tribunal has proceeded to make a decision on the evidence before it and, 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 by the nominator included in the Subclass 187 visa application.

    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 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 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.

13. The facts and circumstances relating to the applicant appearing not to be the subject of an approved nomination, or one that was refused and is currently awaiting review, were particularised in the letter sent to the applicant by the Tribunal on 6 March 2020.  It was explained in the letter why the decision under review would be affirmed if he did not have the relevant approved nomination relating to his Subclass 187 visa application.

14. In summary, the Tribunal’s s.359A letter sent to the applicant on 6 March 2020 included:

    a.His Subclass 187 visa application was made on 2 June 2017 on the basis of a proposed nomination by Feather Dart Group Pty Ltd for a Café or Restaurant Manager

    b.On 20 November 2018, Feather Dart Group Pty Ltd’s nomination was refused 

    c.Feather Dart Group Pty Ltd lodged an application for review of the Department’s decision not to grant the nomination with the Tribunal on 7 December 2018

    d.On 26 November 2019, the Tribunal (differently constituted) determined it had no jurisdiction to review the decision and the Feather Dart Group Pty Ltd matter was finalised.

15. On the evidence, the Tribunal is satisfied that the applicant does not have a current nomination that has been approved by the Minister, relating to his subclass 187 visa application.

16. Therefore, cl.187.233 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.

    DECISION

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

    Jennifer Cripps Watts
    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.