Nasrullah (Migration)

[2022] AATA 771

Nasrullah (Migration) [2022] AATA 771 (30 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Hafiza Faiza Nasrullah
Mr Hamid Mukhtar

REPRESENTATIVE:  Mr Manmohan Makkar (MARN: 1388274)

CASE NUMBER:  1928405

HOME AFFAIRS REFERENCE(S):          BCC2019/2340787

MEMBER:Warren Stooke AM

DATE:30 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 30 March 2022 at 9:06am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Nomination Scheme) – direct entry stream – office manager – subject of approved position nomination – related nomination application refused and no jurisdiction for tribunal to review – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
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 8 April 2019. 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 of Office Manager – ANZSCO Code: 512111.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the applicant did not have an approved standard business sponsor for the nominated position.

6. On 11 March 2022 the Tribunal invited the applicant pursuant to s359A to comment on the following information by 25 March 2022:

   “The application for approval of the nominated position made by WESTVIEW
   HEALTHCARE PTY LTD (the nominator) was refused by a delegate of the
   Minister for Immigration. The nominator sought a review of that decision and it
   follows that the Tribunal does not have jurisdiction in this matter. This means
   that the nominator’s application for the nominated position has not been
   approved.
   This information is relevant to the review because it is a requirement for the grant of
   the visa that the position specified in your visa application is the subject of an
   approved nomination.”

7. As at the 25 March 2022 the applicant had not responded to the Tribunal’s correspondence containing a request for information of 11 March 2022. Given that the applicant did not provide a response to the Tribunal’s correspondence of 11 March 2022 by the 25 March 2022, the applicant has lost the right to a hearing and accordingly, the Tribunal has proceeded to determine the matter without recourse to a hearing.

8. The applicant was represented in relation to the review.

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 has an approved standard business sponsor for the position of Office Manager – ANZSCO Code: 512111.

    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 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. As the applicant has not responded to the Tribunal s359A request for information of 11 March 2022 and provided evidence of an approved standard business sponsor, the Tribunal is satisfied that the applicant does not have an approved standard business sponsor for the position of Office Manager – ANZSCO Code: 512111.

14. The Tribunal is satisfied that the applicant does not have an approved standard business sponsor, based upon the evidence before the Tribunal and the applicant has not met cl.187.233

15. Therefore, cl.187.233 is not met.

16. 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.

17. On the basis that the primary applicant has not met the criteria for the grant of a 187 visa, it follows that the secondary applicants are not members of a family unit that has met the criteria for the grant of a 187 visa.

    DECISION

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

    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:

    (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.