Naz (Migration)

[2020] AATA 1341

Naz (Migration) [2020] AATA 1341 (29 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ghousia Naz
Ms Maryam Shoaib
Ms Javeria Shoaib

CASE NUMBER:  1915070

HOME AFFAIRS REFERENCE(S):          BCC2017/3819344

MEMBER:Phoebe Dunn

DATE:29 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 29 April 2020 at 10:02am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Chef – subject of an approved nomination – nomination withdrawn – no discretion – decision under review affirmed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 (the Act).

2. The applicants applied for the visas on 17 October 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Chef (ANZSCO 321211).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(4) of Schedule 2 to the Regulations because the delegate found that the nomination lodged by the nominating business, Prime Sector Pty Ltd (the nominator), being the nomination referred to in cl.187.233(1), had been withdrawn by the nominator on 11 April 2019.

6. The applicants were initially invited to appear before the Tribunal in a hearing of this matter on 10 March 2020, but this hearing was postponed on the applicant’s request on medical grounds. The hearing was rescheduled for 25 March 2020 as a telephone hearing due to the COVID-19 pandemic, but was again postponed at the applicant’s request, again on medical grounds.

7. The telephone hearing was rescheduled to 9 April 2020 and the first named applicant appeared by telephone to give evidence and present arguments.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant consented to the hearing being conducted by telephone in writing and this was confirmed at the commencement of the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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 there is an approved nomination.

11. At the hearing of this matter, the applicant gave detailed oral evidence of the background to this matter. The applicant stated that she started working for the nominator on 1 March 2017 part-time while on her student visa.  The applicant stated that the nominator offered to sponsor her for a Subclass 187 Direct Entry visa on 17 October 2017 because he was happy with her work.  She stated that she left Australia and went to Pakistan where she lodged the application.  She then waited for the visa to be processed. During this time, she was in regular contact with the nominator and the nominator’s migration agent who was located in Brisbane, about the progress of the nomination and visa applications and was told not to be concerned.  The applicant stated that the first time she became aware that the nomination application had been refused was when she received the letter from the Department stating that her visa application had been refused.  She and her husband then tried to contact the nominator and the migration agent, but they would not take her call.  She then spoke to the Department who explained to her that the nominator had withdrawn the nomination application. She stated that the nominator did not tell her that he was withdrawing the application.  She stated that when she finally got to speak to the nominator, he told her that he had no choice because he was winding up the business.

12. At the hearing, the Tribunal put information to Mrs Naz under s.359AA of the Act that would be the reason, or part of the reason, for affirming the decision under review. The Tribunal advised the applicant that the Tribunal was raising the information with the applicant, not because the Tribunal had already made up its mind in relation to the information, but to give the applicant an opportunity to comment on or respond to the information in order to help the Tribunal to make up its mind. The Tribunal explained the relevance of the information and the consequences of it.

13. The particulars of the information are that the application for approval of the nominated position made by Prime Sector Pty Ltd in respect of the applicant’s Subclass 187 visa application was withdrawn by the nominator on 11 April 2019.

14. The Tribunal explained that this information is relevant to the review because it suggests that there is not an approved nomination on foot in respect of the applicant, and that it is a requirement for the grant of a Subclass 187 visa that the position nominated in the visa application is the subject of an approved nomination. The Tribunal further explained that if the Tribunal relied on this information in making its decision, the Tribunal may find that the position specified in the applicant’s visa application is not the subject of an approved nomination, which is a requirement of cl.187.233(3) of Schedule 2 to the Regulations, and that this would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review. The Tribunal further explained that if the Tribunal relies on this information in making its decision, the Tribunal may also find that the secondary applicants do not satisfy the requirements for the grant of the visa as their applications were made on the basis that they are members of the family unit of an applicant for a Subclass 187 visa. The Tribunal explained that as the applicant has not been granted a Subclass 187 visa, the secondary applicants do not satisfy the requirements of cl.187.311 and the consequences of this are that the Tribunal must affirm the decision under review in relation to the secondary applicants.

15. The Tribunal explained that this would be the reason, or part of the reason, for affirming the delegate’s decision to refuse the visa applications. The Tribunal invited the applicant to comment on or respond to the information, or to seek additional time to comment on or respond to the information. The applicant sought an adjournment, which was granted by the Tribunal and the hearing was adjourned for a period of approximately 15 minutes.

16. On resumption, the applicant requested additional time to comment on or respond to the information, noting that she did not have a lawyer or a migration agent and she wished to speak to her husband. The applicant stated that she was in the situation because of the actions of others and through no fault of her own.

17. The Tribunal stated that it understood the circumstances are difficult and reiterated to the applicant that the issue in the case was whether the related nomination had been approved. The Tribunal noted that a requirement for the grant of a Subclass 187 visa (as specified in cl.187.233(3)) is that the related nomination application had been approved. The Tribunal noted that where a nomination has been withdrawn, this means the applicant could not meet the requirements for the grant of the visa as there is no approved nomination and that the Tribunal has no discretion in relation to this requirement.  The Tribunal explained that lodging a new nomination can’t satisfy this criterion. The Tribunal noted that it was not able to provide the applicant with legal advice and recommended that she seek advice through a lawyer or migration agent.

18. The Tribunal granted the applicant an additional period of time until 19 April 2020 to comment on or respond to the information.

19. By email received on 19 April 2020, the applicant stated as follows:

    As you required the documents so i am sending you. Its all the scenario happened with me incidently (sic) As my employer withdraw nomination for my RSMS visa without noticing As i was not aware for that (sic).

    Due to this, my whole family struggling and im finding a way to cope all the situation and trying to reduce my stress As im taking some sessions with psychologists (sic).

    I request you if you can find any way or further update so plz (sic) explain what can be done in my case to apply again or other positive way to successful skill migration.

20. The applicant has provided the following screen shots of documents to the Tribunal:

    a.Handwritten submission, providing a detailed account of the applicant’s experience of the visa and review application process and noting the psychological and physical impact of her visa issues, including the impact on her pregnancy and subsequent premature birth of her third child after receiving the decision record refusing her Subclass 187 visa application;

    b.Letter dated 16 April 2020 from Belinda Horton, Mental Health Occupational Therapist with ‘Mums Matter Psychology’.  Ms Horton notes that Mrs Naz was referred to the clinic at the end of 2019 for counselling for her anxiety symptoms and adjustment following the birth of her third child as part of the identified needs in her Mental Health Care Plan.  Ms Horton notes that Mrs Naz’s ‘stress and fatigue have been compounded by the difficulties in her visa application process’ and that she was anticipating future sessions with Mrs Naz;

    c.Documents to demonstrate that when she received the refusal letter from the Department on 30 May 2019 she was taken to emergency at 33 weeks and two days and her daughter,  Sarah Naz, was born prematurely and remained in hospital for a period of one month:

    i.Birth certificate, listing the date of birth as 31 May 2019;

    ii.Discharge summary from Western Health for Sarah Naz, admitted 3 June 2019, discharged 21 June 2019;

    iii.Discharge summary from Royal Women’s Hospital admitted 31 May 2019, discharged 3 June 2019; and

    iv.Royal Women’s Hospital birth details report for Sarah Naz.

    Nomination of a position

21. 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.

22. 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 of the Regulations); 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.

23. The Tribunal has carefully considered the applicant’s oral evidence and written submissions provided to the Tribunal in support of this case, as well as the material on the Departmental file and is unable to make a positive determination.  The Tribunal notes the psychological and physical impact on the applicant and appreciates that the circumstances are difficult, but notes that the Tribunal does not have discretion in relation to the requirement that for a Subclass 187 visa application to be successful, the related nomination application, being the nomination application referred to in cl.187.233(1), must have been approved.

24. In this case, the nomination application lodged by the nominator, Prime Sector Pty Ltd, for the nominated position of Chef, being the nomination referred to in cl.187.233(1) in respect of the applicant, was withdrawn by the nominator on 11 April 2019. As such, there is no approved nomination as required under cl.187.233(3), and a new nomination application will not enable the applicant to meet this requirement. Accordingly, cl.187.233(3) is not met.

25. Therefore, cl.187.233 is not met.

26. 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.

27. The only basis of the applications of the second and third named applicants is that they are members of the family unit of the person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.187.311(a).  As the first named applicant does not meet the primary criteria and has not been granted a Subclass 187 visa, the decision to refuse the applications of the second and third named applicants must also be affirmed because they do not satisfy cl.187.311.

    DECISION

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

    Phoebe Dunn
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.