Nadi Shahri (Migration)

[2019] AATA 3019

Nadi Shahri (Migration) [2019] AATA 3019 (22 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohsen Nadi Shahri

CASE NUMBER:  1618603

HOME AFFAIRS REFERENCE(S):          BCC2016/2779563

MEMBER:Warren Stooke AM

DATE:22 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 22 May 2019 at 3:23pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – subject of an approved nomination – 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 Immigration and Border Protection 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 22 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 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.187.223 of Schedule 2 to the Regulations because the correlating nomination did not meet the requirements of and was not assessed under subregulation 5.19(3), the applicant did not meet regulation 187.223.

6. The applicant appeared before the Tribunal on 14 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence Ms Danielle Cinanni, the applicant’s spouse.

7. The applicant was represented in relation to the review by his registered migration agent.

8. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate. In this regard, the applicant provided a copy of the decision to the Tribunal as part of the application, which was confirmed by the applicant.

9. At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate's decision of 22 October 2016 and that he understood the content of the decision.

10. The applicant stated to the Tribunal that he understood the reasons for the delegate’s decision but disagreed with the decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is that the applicant does not have an approved standard business sponsor.

13. The Tribunal asked the applicant if he had an approved standard business sponsor and the applicant responded: “I don’t have a sponsor”.

14. The Tribunal apprised the applicant that the legislation requires an applicant to have a approved standard business sponsor for an application to meet the legislative requirements.

15. The applicant stated that he applied for the visa in 2015 and was rejected in 2016 and that he then sought to contest the refusal.

16. The applicant gave evidence that the business that was sponsoring him was sold in June 2018 and that he had worked for the restaurant for 2 years and 7 months.

17. The applicant stated to the Tribunal: “You mentioned that I need a sponsor, I did not know that.”

18. The applicant gave evidence that he thought the delegate’s decision was as a consequence of the rejection of trivial things.

19. The applicant gave evidence that he and his wife were married since the delegate’s decision was made and that they have a current application before the Department of Home Affairs for the grant of a spousal visa.

20. The applicant stated that he did not want to be unlawful.

21. The Tribunal stated that it is not appropriate for the Tribunal to provide advice to the applicant, but it would be appropriate to seek advice from their representative, as to their available options.

22. The applicant’s spouse, Ms Cinanni, gave evidence that the applicant had several opportunities to continue his professional as a Restaurant Manager and that he was highly experienced and qualified. The witness appreciated that the restaurant had been sold and that her husband was no longer working in that business. She also stated that unlike the former 457 visa, her husband did not have the option to transition to another employer with the current 187 visa application.

    Nomination of a position

23. 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.

24. 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.

25. The Tribunal is satisfied on the evidence that the applicant does not have an approved standard business sponsor.

26. The Tribunal found the applicant and his spouse to be highly open and credible people in their interaction with the Tribunal.

27. The Tribunal notes that in the absence of an approved standard business sponsor, through no fault of the applicant, the couple’s lives have been thrown into uncertainty and turmoil, as a consequence of the nominating sponsor having sold the business and no longer being in a position to support the applicant’s nomination.

28. The Tribunal is satisfied that the qualifications and experience of the applicant would have met that part of the criteria pertaining to qualifications and experience from the material submitted to the Tribunal before the hearing.

29. On the basis that the applicant does not have an approved standard business sponsor, the Tribunal has no alternative other than to affirm the decision of the delegate.

30. Therefore, cl.187.233 is not met.

31. 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

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

    Warren Stooke AM
    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.