Pathan (Migration)

[2018] AATA 2919

Pathan (Migration) [2018] AATA 2919 (13 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Junaidkhan Bismillakhan Pathan
Mrs Rumanabanu Junaidkhan Pathan

CASE NUMBER:  1705003

DIBP REFERENCE(S):  BCC2016/782511

MEMBER:Karen McNamara

DATE:13 July 2018

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 13 July 2018 at 10:28am

CATCHWORDS
Migration – Regional Employment Nomination (Permanent) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry Scheme – Nominated position – Café or Restaurant Manager – Nomination refusal affirmed by the Tribunal – Extension of time sought – New nomination lodged – Declaration not applicable to future applications – Secondary applicant – Member of the same family unit – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, r 5.19 Schedule 1 Item 1114C Schedule 2 cl 187.233, 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 Immigration and Border Protection to refuse to grant Mr Junaidkhan Bismillakhan Pathan and Mrs Rumanabanu Junaidkhan Pathan (the applicants) a 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 24 February 2016. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant, Mr Junaidkhan Bismillakhan Pathan (the primary applicant) is seeking the visa in the Direct Entry stream, to work in the nominated full time position of Café or Restaurant Manager ANZSCO 141111. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

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 application lodged by Ammar Group Pty Ltd was refused by a delegate of the Minister for Immigration and Border Protection on the 23 January 2017. As a result Mr Pathan did not meet cl.187.233(3) of Schedule 2 to the Regulations. A copy of the delegate’s decision was provided to the Tribunal.

6. The delegate found in regard to the dependant applicant (Mrs Rumanabanu Junaidkhan Pathan), as the applicant is not a member of the family unit of a 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 is not satisfied by Mrs Rumanabanu Junaidkhan Pathan

7. The applicants applied to the Tribunal on 16 March 2017 for review of the delegate’s decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicants meet the requirements of cl.187.233.

   Nomination of a position

10. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

11. 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); 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.

12. On the 13 April 2018, the Tribunal affirmed the decision refusing the approval of the nomination made by Ammar Group Pty Ltd in respect of the applicants.  As the nomination has been refused, regulation 187.233(3) is not met.

13. On 23 April 2018, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants 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 information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Ammar Group Pty Ltd which the Tribunal explained was relevant to them meeting cl.187.233(3), which requires the nomination to be approved. As the nomination has been refused, regulation 187.233(3) is not met.

14. The applicants advised the Tribunal by email on the 4^th and 7^th May 2018 that they had lodged a new nomination and sought ‘more time’ to provide the approved nomination. The emails were signed off by Junaid Pathan.

15. The Tribunal invited the applicants to give evidence and present arguments at a hearing on 4 June 2018 which was rescheduled by the Tribunal to 9 July 2018.

16. The applicants appeared before the Tribunal by teleconference on 9 July 2018 to give evidence and present arguments.

17. At the commencement of the hearing, the Tribunal identified that the issue in this review, is whether there is an approved nomination for the purposes of cl.187.233 of Schedule 2 to the Regulations and it explained the requirements of this provision.

18. Mrs Pathan spoke on behalf of her husband and advised that they had worked very hard to get the business to work well and that they have made another nomination.  Mrs Pathan asked the Tribunal to provide additional time for the applicants to provide an approved nomination.

19. The Tribunal advised the applicants that the law provides where there is a new application, the declaration in the Subclass 187 visa application is required to have been made in relation to a nomination made by the nominator, in this instance Ammar Group Pty Ltd, for that position which was in existence at the time of declaration. The declaration required by paragraph 1114C(3)(d) of schedule 1 to the Migration Regulations cannot be made in relation to a position nominated by the nominator or any other employer in a future nomination application.

20. In this matter the applicant listed Nomination TRN:EGOAU8VNWA on page 1 of their subclass 187 visa application dated 24 February 2016 and the delegate’s nomination decision of 23 January 2017 makes reference to Ammar Group’s nomination application of the 24 February 2016 citing TRN:EGOAU8VNWA and Ammar Group’s nomination listed    Mr Pathan as the nominated person. The Tribunal advised the applicants that Ammar Group’s nomination application is the subject of their declaration in their Subclass 187 Visa application.

21. On the evidence before it, the Tribunal finds that the nomination application (that was subject to the declaration made by the applicants in their Subclass 187 Visa application) has not been approved and as such the primary applicant Mr Pathan does not meet cl.187.233(3) of Schedule 2 to the Regulations.

22. Accordingly cl.187.233 is not met.

23. As the primary applicant is found not to have met the prescribed criteria for a Regional Sponsored Migration Scheme visa, the second named applicant, Mrs Rumanabanu Junaidkhan Pathan as a member of his family unit, therefore is also unable to satisfy the criteria for this visa class. The Tribunal therefore finds that as the second named applicant, Mrs Rumanabanu Junaidkhan Pathan, is not a member of the family unit of a person who holds a subclass 187 visa, clause 187.311 is not satisfied.

24. As such, the applicants do not meet an essential criterion for the grant of a subclass 187 visa.

25. The applicants have 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.

    DECISION

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

    Karen McNamara
    Member