PATEL (Migration)

[2019] AATA 4464

PATEL (Migration) [2019] AATA 4464 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jimish Rameshchandra PATEL
Mrs Hiral Jimish PATEL
Master Henil Jimish PATEL

CASE NUMBER:  1914957

HOME AFFAIRS REFERENCE(S):           BCC2017/434518

MEMBER:Jennifer Cripps Watts

DATE:3 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 October 2019 at 5:31pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Hair or Beauty Salon Manager – subject of an approved nomination – nomination application withdrawn – decision under review affirmed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 (the delegate) 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 2 February 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 Direct Entry stream, to work in the nominated position of Hair or Beauty Salon Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination to which the visa application related was withdrawn.

6. On 11 June 2019, the applicants applied for review and provided the Tribunal with a copy of the delegate’s decision.  On 29 August 2019, the Tribunal sent the applicants an invitation to attend a scheduled hearing on 2 October 2019. 

7. On 17 September 2019, the applicant made a written request for access to documents, under s.362A of the Act.  Full access was granted and the documents sent on 19 September 2019 by email.

8. On 18 September 2019, the Tribunal sent the applicant a letter informing him of adverse information, specifically that it appeared he was not the subject of a nomination, nor was a nomination refusal pending review.  It was explained that this is required for him to meet the primary criteria and that, subject to his comments or response, it would be the reason or a part of the reason for affirming the decision to refuse his Subclass 187 visa.  The applicant was invited to comment or respond by 2 October 2019.  On 1 October 2019, by way of response, the applicant informed the Tribunal that he and the secondary applicants would be attending the hearing (to give oral evidence).  

9. The applicants appeared before the Tribunal on 2 October 2019.  The applicant gave oral evidence, his wife elected not to.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant has an approved nomination for the position identifying the applicant, or review of a nomination refusal pending, relating to her visa application.

12. The nomination application was made on 2 February 2017 and refused on 20 March 2019.

13. On 18 September 2019, the applicant was sent a letter containing adverse information which included the following:

    ‘In your Subclass 187 visa application, you identified the company nominating you as Hairforce Design (Aust) Pty Ltd in Queensland (Hairforce).  On 20 March 2019, the nomination relating to your visa application by Hairforce was withdrawn and you were advised of this by the Department, in writing, on 2 May 2019.

    For the grant of a Subclass 187 visa, you must meet cl.187.233 which requires, among other things, that you are the subject of an approved nomination or nomination refusal on review.  It does not appear that you are the subject of an approved nomination or a refused nomination on review and, if this is the case, you will not be able to meet the primary criteria for the grant of the visa’.

14. In the s.359A letter, the applicant was invited to comment on or respond to the information, by 2 October 2019 (the day of the scheduled hearing), and informed that subject to his comments or response this would be the reason, or a part of the reason, for affirming the decision under review. 

    Background

15. At the Tribunal hearing, it was confirmed with the applicant that he had attended to comment on the information put to him in the letter sent by the Tribunal on 18 September 2019 and, in addition, he was invited to say whatever he wished to in support of the review. 

16. The applicant said he came to Australia 14 years ago as a student and the reason he has been here so long is because he did not pass the English test, even though he took the test 22 times.  The Tribunal pauses here to observe that the applicant did not request and did not appear to need an interpreter and his conversational English at the hearing was very good.  Occasional clarification was sought by both sides, but it was nothing out of the ordinary when considered in the context of migration hearings in general.

17. The applicant said that in 2014, the Pearson Test (PTE) was introduced and he took the test in Melbourne in April of that year and was successful.  The applicant has a Master of Professional Accounting and applied for a Subclass 485 Graduate visa which he said was granted.  He then did his accounting professional year and during this time continued trying to pass the IELTS English language test, but was again unsuccessful because he said he needed a minimum score of seven (7) and did not achieve that.

18. In 2016, the applicant said he met with a friend who introduced him to a migration agent, Mofid Bebawy, who at the time held Migration Agent Registration Number 1066880.  He said Mr Bebawy told him he knew someone in Queensland who would nominate him for a Subclass 187 visa on the basis of the applicant’s qualifications, so he gave Mr Bebawy his ‘documents’. 

19. On behalf of the applicant, Mr Bebawy lodged the 187 visa application for the applicant on 2 February 2017, which was confirmed with reference to the online application on the Department file.  The applicant said that over the next two years, he kept contacting Mr Bebawy to find out if there had been any update from the Department about the Hairforce nomination or his visa application.  The applicant said he was mindful that he and his family would need to move to Queensland once the nomination was approved and he wanted to know when to make plans.

20. The following events took place around February/March 2019.  The applicant said that when his wife and son’s passport expired in 2019, he applied for renewal from the Indian Consulate.  He gave the renewed passports to Mr Bebawy and, soon after, the applicant received an email from the Department informing him that his migration agent, Mr Bebawy, had been deregistered.  The Tribunal conducted an online search of the Office of the Migration Agents Registration Authority (OMARA) and confirmed that Mr Bebawy’s registration was cancelled on 14 February 2019.  The applicant said he spoke to someone at the Department who told him that Mr Bebawy had ‘done something wrong in the past’ and he was told he should find a new migration agent.  The applicant said he made numerous attempts to contact Mr Bebawy and finally managed to speak with him.  The applicant said Mr Bebawy told him that a colleague who worked with him, Paneet Lidher, would take over his matter, on around 26 February 2019.  On a Form 956  ‘Advice by a migration agent/exempt person of providing immigration assistance’ provided to the Department, signed by the applicant on 20 February 2019 and by Ms Lidher on 25 February 2019, the applicant appointed Ms Lidher.  There was no Migration Agent Registration Number included for Ms Lidher in the Form 956.  A check of OMARA reveals no migration agent of this name, either registered or not.

21. The applicant said that he was not satisfied with what he had been told by Mr Bebaway and, in about the first week of March 2019, he went to see him in person on the Gold Coast and was told by Mr Bebawy that he could not give further migration advice because he was no longer a migration agent.  The applicant said Mr Bebawy told him that Ms Lidher was soon going on maternity leave and she would not be able to look after his case for long.  About two weeks later the applicant says he was told by Ms Lidher that she was not working with Mr Bebawy any more.  He was shortly thereafter advised by the Department that Hairforce had withdrawn their nomination application.

22. The applicant said at the hearing that he had never met the owner of Hairforce, but he was not concerned because he thought that this was the process, that a migration agent organised everything.

23. The applicant said that after receiving this notification he went and saw as many as 15 migration agents in Sydney who all advised him that he had no chance of success with regard to his Subclass 187 visa application, in his circumstances.

24. The applicant’s visas were refused and they were notified of the refusal by the delegate on 3 June 2019.  The applicant seems not to dispute that he cannot be granted the Subclass 187 visa due to his not satisfying cl.187.233 because he does not have a nomination that has been approved.  What he asked the Tribunal to do is to give him more time to pass the IELTS English test so he can meet the requirements to apply for General Skilled Migration (GMS) in one of the independent points tested schemes such as Subclass 189 or 190 visa programs with the support of his current employer for whom he works part-time as an accountant and also as a team leader.

25. The question for the Tribunal is whether the applicant meets cl.187.233 of Schedule 2 to the Regulations. There is no discretion for the Tribunal to waive the requirement that the applicant meets cl.187.233.

    Nomination of a position

26. 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:  1114C(3)(d).  In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position, which is not applicable in this case because the nomination application was made prior to 1 July 2017.

27. Relevant to this review, the criterion includes that the nomination has been approved and has not been subsequently withdrawn.

28. As already mentioned, on 18 September 2019, the Tribunal provided the applicant with the opportunity to comment on or respond to adverse information, specifically that the nomination was not approved and there was no pending review of the decision to refuse the nomination.  The applicant provided his comments at the Tribunal hearing when he gave his oral evidence.

29. Notwithstanding the history of this matter and the de-registration of his migration agent, the Hairforce nomination was withdrawn and the applicant simply does not have an approved nomination relating to the Subclass 187 visa that is the subject of this review.  The nomination was withdrawn and the applicant does not satisfy cl.187.233(4). 

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.

    Secondary applicants 

32. As the Tribunal has found that the applicant does not meet the Subclass 187 primary criteria and has affirmed the decision to refuse the applicant’s visa, it must also affirm the decision to refuse the visas of the members of his family unit who made a combined application, the secondary applicants.

    DECISION

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

    Jennifer Cripps Watts
    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.