Pasha (Migration)

[2021] AATA 5626

Pasha (Migration) [2021] AATA 5626 (2 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Khaja Pasha

CASE NUMBER:  1925139

HOME AFFAIRS REFERENCE(S):          BCC2017/957843

MEMBER:Amanda Ducrou

DATE:2 December 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 02 December 2021 at 10:49am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Cafe or Restaurant Manager – nominator’s business had ceased to operate – nomination application associated with the position was not approved – Ministerial intervention request refused ––decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 351
Migration Regulations 1994, rr 1.13, 5.19, 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 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 10 March 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 the Direct Entry stream, to work in the nominated position of Cafe or Restaurant Manager (ANZSCO 141111).

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 nomination lodged by the sponsor, Hospitality Future Pty Ltd, was refused by the Department and, as such, there is no approved nomination. The decision to refuse the nomination lodged by Hospitality Future Pty Ltd was made by a delegate of the Minister for Home Affairs on 25 July 2019. The decision to refuse to grant the visa to the applicant was made on 27 August 2019.

6. The Tribunal received an application for review from the applicant on 7 September 2019. The Tribunal received a copy of the delegate’s decision record with the application.

7. On 6 October 2020 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to appear by telephone to give evidence and present arguments at a hearing on 11 November 2020 at 1:30pm (NSW time), 1:30pm (VIC time). The Tribunal is satisfied that the hearing invitation was properly sent to the correct email address, being the last email address provided in connection with the review. The invitation was not returned as undeliverable mail. The Tribunal received the applicant’s response to the hearing invitation on 12 October 2020 which confirmed that the applicant would take part in the hearing scheduled for 11 November 2020.

8. The applicant appeared before the Tribunal on 11 November 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone via MS Teams audio and the applicant participated in the hearing by telephone via MS Teams audio. The hearing was held during the COVID‑19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone via MS Teams audio, 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 Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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 beginning of the hearing the Tribunal told the applicant that it is in possession of a certificate purported to be issued under s 375A of the Act regarding an anonymous allegation that the applicant paid for employer sponsorship and that the position in the related nomination application made by Hospitality Future Pty Ltd, being the nomination related to the applicant’s 187 visa application is not genuine.

12. The Tribunal told the applicant that the Tribunal is of the view that the certificate is not valid as it is not signed. Further, the Tribunal told the applicant that it considers that the information subject to the invalid certificate is not relevant to this review as the sole issue before the Tribunal in this case is whether the nomination linked to the applicant’s visa application is approved and as there is no pending appeal before the AAT of the decision to refuse the related nomination application made by Hospitality Future Pty Ltd it follows that there is no approved nomination as required under cl 187.233(3) of the Regulations which is not a matter in relation to which the Tribunal has discretion. The Tribunal informed the applicant that it was placing no weight on the information subject to the invalid certificate in this review.

13. The applicant confirmed he had read the delegate’s decision record and understood why the delegate decided to refuse to grant the visa. The applicant noted that the nomination application linked to his visa application was refused because the nominator’s business had ceased to operate.

14. The Tribunal put information to the applicant pursuant to s 359AA of the Act, being that the Tribunal had received an application for review of the decision made by the delegate (on 25 July 2019) to refuse to approve the nomination application made by Hospitality Future Pty Ltd and that on 26 November 2019 the Tribunal (differently constituted) made a decision that the Tribunal does not have jurisdiction to review the nomination refusal, because the nominating business had been deregistered and had ceased to exist as a legal entity. The Tribunal advised that it had not made up its mind about this information but considered that this information is relevant and potentially adverse to the applicant’s case because it is a requirement for the grant of the visa that the position specified in the applicant’s visa application is the subject of an approved nomination and subject to the applicant’s comments or response, if the Tribunal did accept the information as true, it would mean that the nominator’s application for the nominated position is not approved and there is no pending review before the Tribunal for review of the delegate’s decision to refuse the nomination application. This would mean that the applicant does not satisfy a requirement for the grant of the visa and that this would be the reason, or a part of the reason, for affirming the decision under review made on 27 August 2019 to refuse to grant the applicant the Subclass 187 visa.

15. The Tribunal informed the applicant that he did not need to comment on or respond to this information immediately and asked him if he wished to ask for additional time to comment or respond. The applicant elected to respond immediately. The applicant told the Tribunal that he understood that the approval of the nomination for the position linked to his visa application needed to be approved as a precursor to being granted the visa. The applicant told the Tribunal that he had tried but had not been able to contact the employer. The employer had not contacted him before the business shut down so he didn’t know anything about the nomination application. The only thing that he knows about is his visa application.

16. The applicant submitted that the process for applying for and granting the visa had produced an unfair result as he had tried to do everything in the proper way but the visa had still not been granted. The nominator did not have anyone working as manager before the nomination application was made. The applicant held a student visa and could not work full-time for the nominator until the nomination was approved. The nominator told him that it would take six months for the visa to be granted but it took two years before the Department made the decision to refuse the nomination application. During that time the nominator had to do everything and run the business alone but he could not keep doing this and that is why they had to close the business.

17. The applicant submitted that his visa application should be approved on the basis that the delay in the Department deciding to refuse the nomination was the reason why the business closed. If the Department had made its decision earlier within the six-month timeframe the business would have continued. The applicant pointed out that now he has no other options. He has worked hard in Australia and has been forced to remain alone in Australia without his family. The applicant is not permitted to travel overseas under the visa he holds and even if he was permitted to leave Australia he could not have left as a practical matter as he could not return after leaving with this being made even more difficult due to the COVID-19 pandemic. This means that he has not had any family support as his family are overseas. The applicant told the Tribunal that he has spoken to a migration agent who said that they could not do anything, although they told the applicant that he could ask for his case to be referred for Ministerial intervention.

18. The Tribunal accepts that the circumstances that led to the refusal of the application for the nomination of the position linked to Mr Pasha’s application for the Subclass 187 visa are beyond his control. The Tribunal appreciates the extreme distress that Mr Pasha is experiencing in his current situation, which he believes would not have happened in the absence of delay by the Department. It is understandable that Mr Pasha considers that the decision to refuse to grant the application for the Subclass 187 visa is unfair given his situation and the consequences of the decision. However, it remains the case that the application for the nomination of the position related to Mr Pasha’s Subclass 187 visa application has not been approved and no review is pending before the Tribunal of the decision to refuse the nomination application. As the Tribunal explained at the hearing, it is a requirement for the grant of the Subclass 187 visa under cl 187.233(3) of Schedule 2 to the Regulations that there is an approved nomination. This is a question of fact and is a matter over which the Tribunal has no discretion.

    Nomination of a position

19. 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.

20. 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.

21. In this case the applicant applied for a Subclass 187 visa on the basis of the nomination application lodged by Hospitality Future Pty Ltd in respect of the applicant, being the nomination referred to in cl 187.233(1) of Schedule 2 to the Regulations. The nomination application was lodged with the Department on 13 February 2017. The nomination application was refused by a delegate of the Minister on 25 July 2019. As a consequence, on 27 August 2019 the applicant’s Subclass 187 visa was refused by the delegate on the basis that there is no approved nomination.

22. Hospitality Future Pty Ltd applied to the Tribunal for review of the decision made on 25 July 2019 to refuse the nomination application. However, on 26 November 2019 the Tribunal determined that it does not have jurisdiction to review the decision to refuse the nomination application, as the nominator has been deregistered and ceased to exist as a legal entity. This means that the matter has been finally determined and that there is no approved nomination as required under cl 187.233(3) of Schedule 2 to the Regulations. As a result, the requirement in cl 187.233(3) of Schedule 2 to the Regulations is not satisfied.

23. Therefore, cl 187.233 is not met.

24. 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.

    Ministerial intervention pursuant to s 351 of the Act

25. The applicant requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 of the Act, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant made the request based on his oral evidence and oral submissions (as already set out).

26. The Tribunal acknowledges that the applicant is in an unfortunate position and that the satisfaction of the requirements for the approval of the nomination application are not within the applicant’s control. The Tribunal appreciates that the time taken by the Department to reach a decision regarding the nomination application linked to the applicant’s visa application may have contributed to the circumstances in which the nominating business closed. However, the Tribunal is satisfied that this is not sufficiently unique or compelling to warrant the Tribunal referring the matter. The Tribunal acknowledges and gives some weight to the length of time that the applicant has lived in Australia, that the applicant has worked in Australia and has contributed to Australia financially and that remaining in Australia without being granted the visa and in the absence of family support has resulted in detriment and hardship to the applicant who will be adversely affected by being forced to relocate from Australia. However, the Tribunal is not satisfied that the evidence demonstrates that the applicant’s circumstances render his situation sufficiently unique and exceptional to justify referring the matter.

27. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    decision

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

    Amanda Ducrou
    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.