Ozgun (Migration)

[2023] AATA 2682

Ozgun (Migration) [2023] AATA 2682 (14 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Aylin Ozgun
Mr Sedat Murat Ozgun

REPRESENTATIVE:  Mrs Athina Stephanou (MARN: 0103875)

CASE NUMBER:  1927164

HOME AFFAIRS REFERENCE(S):          BCC2017/3866164

MEMBER:Terrence Baxter

DATE:14 July 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 14 July 2023 at 10:43am

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Office Manager – applicant is not a member pf the family unit of a person who has been granted a Subclass 187 visa – nomination application associated with the position was not approved – nomination remains refused –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 187.223, 187.311

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 20 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 (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 for Muray Pty Ltd (the nominator).

5. The delegate refused to grant the visas on 17 September 2019 because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 12 August 2019 and that accordingly the applicant did not satisfy cl 187.233(3) and did not meet cl 187.233 as a whole as required.

6. The delegate also found that the second named applicant could not be granted a Subclass 187 visa, as he did not meet the secondary visa criterion (cl 187.311) requiring him to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 26 September 2019.

8. The applicant appeared before the Tribunal on 18 January 2023 to give evidence and present arguments. The hearing was a joint hearing with the hearing of an application for review of a decision to refuse the nomination application of the nominator. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

9. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. 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 video conference.

10. The applicants were represented in relation to the review by their registered migration agent. Ms Madalina Philips of No Borders Migration represented the applicants from the lodgement of the nomination application until 31 July 2021. Ms Athina Stephanou of AIS Immigration Solutions represented the applicants from that date. Ms Stephanou attended the Tribunal hearing by video conference.

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 whether there is an approved nomination.

    The invitation to a second hearing

13. After the hearing on 18 January 2023, the Tribunal ascertained that audio malfunctions had occurred during the recording of that hearing. Parts of the audio recordings were indistinct, and other parts were missing. The malfunctions were apparently caused by a global problem experienced by Microsoft on that day.

14. On 15 May 2023, the Tribunal issued an invitation to the applicants to attend a second hearing by video conference to give evidence and present arguments relating to the issues arising in this matter. The Tribunal’s intentions in issuing the invitation to a further hearing were to allow the applicants to clarify any sections of the audio recording that were indistinct or missing. The second hearing was scheduled to take place on 30 May 2023, commencing at 10 AM. In the hearing invitation, the applicants were advised that a Response to Hearing Invitation form should be completed and returned to the Tribunal within seven days of receipt of the invitation. The hearing invitation was forwarded to the applicant by email and accordingly the hearing response was due to be received by the Tribunal by 22 May 2023.

15. On 25 May 2023, the Tribunal contacted the representative by email and requested that the hearing response be returned as soon as possible.

16. On 29 May 2023, the representative contacted the Tribunal by email advising that the applicant would not be attending the hearing scheduled for 30 May 2023. The representative stated that the applicant believed that the hearing on 18 January 2023 was quite stressful for her and would appreciate it “if the Member would consider written response to any additional concerns that the Member may have”.

17. On the same day, 29 May 2023, the Tribunal advised the representative by email that if the applicant did not intend to attend the hearing, she should arrange to provide, as a matter of urgency, a completed Response to Hearing Invitation, consenting to the Tribunal making a decision on the papers without taking further steps to allow the applicant to appear.

18. Later the same day, 29 May 2023, the representative provided a completed Response to Hearing Invitation signed by the applicant stating that she would not participate in the hearing and consenting to the Tribunal making a decision on the papers without taking further steps to allow her to appear.

19. The Tribunal is satisfied that the applicants have consented to the Tribunal making a decision without taking further steps to allow the applicants to appear for a second time. The Tribunal is also satisfied that, despite the audio malfunctions in the recording of hearing on 18 January 2023, the audio recording is of sufficient quality, taken with the notes made by the Tribunal during the hearing, to enable an assessment of the evidence provided at the hearing relevant to the Tribunal’s decision in this matter.

    Nomination of a position

20. 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.

21. 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.

22. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the position of Office Manager approved, with the applicant as nominee, on 20 October 2017. The nomination application was refused on 12 August 2019 and the nominator sought review of that decision with the Tribunal on 29 August 2019.

23. On 12 June 2023, the Tribunal (as presently constituted) affirmed the decision to refuse the nomination.

24. On 16 June 2023, the Tribunal wrote to the applicants pursuant to s 359A of the Act inviting them to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 12 June 2023, the Tribunal affirmed the decision not to grant an Employer
    nomination lodged by Muray Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl. 187.233(1).

    If we rely on this information in making our decision, we may find that you do not meet cl. 187.233(3), which requires the nomination to be approved, and affirm the
    decision under review.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 30 June 2023.

25. On 28 June 2023, the representative responded to the Tribunal’s invitation, stating:

    Please be advised that our client has requested that a decision be made based with evidence and documents on hand.

26. There was an omission from the Tribunal’s invitation of 16 June 2023, in that it omitted to make any reference to the consequences for the second named applicant of the Tribunal’s decision to affirm the refusal of the nomination. Accordingly, on 29 June 2023, the Tribunal again wrote to the applicants pursuant to s 359A of the Act inviting them to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 12 June 2023 the Tribunal affirmed the decision not to grant an Employer
    Nomination lodged by Muray Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl. 187.233(1).

    If we rely on this information in making our decision, we may find that Mrs Aylin Ozgun does not meet cl. 187.233(3), which requires the nomination be approved, and affirm the decision under review.

    We may subsequently find that Mr Sedat Murat Ozgun does not meet the secondary
    visa criterion cl 187.311, which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of a visa and holds a Subclass 187 visa, and affirm the decision under review in respect of their (sic) applications.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 13 July 2023.

27. The Tribunal is satisfied that this second invitation was properly dispatched to the applicants’ email address. Today, 14 July 2023, the representative contacted the Tribunal by email stating that the applicant “has confirmed and requested for the AAT Member to make a decision based on current situation”. No comment on or response to that invitation has been received by the Tribunal other than that advice.

28. The Tribunal has considered whether it should take further action to obtain the applicants’ views on the information referred to in paragraph 26 above. Although the applicants have not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicants have been aware since 17 September 2019 of the reasons for the visa application being refused, and also that the implications of not providing the information requested in the invitation from the Tribunal of 29 June 2023 were set out in that correspondence. The Tribunal has also taken into account that the applicants notified the Tribunal that they would not take part in the hearing scheduled for 30 May 2023 and consented to the Tribunal making a decision on the papers and that the applicant was advised at the hearing on 18 January 2023 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by the nominator.

29. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicants’ views on the information referred to in the invitation from the Tribunal of 29 June 2023 or to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cl 187.233 and cl 187.311 of Schedule 2 to the Regulations.

30. The Tribunal notes that the application for nomination for the position of Office Manager has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application. Accordingly, cl 187.233(3) is not met.

31. Therefore, cl 187.233 is not met in respect of the applicant.

32. 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.

33. In relation to the second named applicant, the Tribunal notes that cl 187.311 of Schedule 2 to the Regulations requires that a secondary visa applicant be a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 187 visa and is not the holder of a Subclass 187 visa, it follows that the second named applicant does not satisfy the requirements of cl 187.311. The Tribunal finds accordingly.

    DECISION

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

    Terrence Baxter
    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.