Rahman (Migration)

[2019] AATA 3126

Rahman (Migration) [2019] AATA 3126 (22 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Farhana Rahman
Mr Anm Wahid Ullah Bhuiyan
Master Tahseen Bhuiyan

CASE NUMBER:  1835635

HOME AFFAIRS REFERENCE(S):          BCC2017/1974768

MEMBER:Katie Malyon

DATE:22 May 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 22 May 2019 at 1:18 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – failure to attend scheduled hearing – Direct Entry stream – subject of an approved nomination – nomination application withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Singh v MIBP [2017] FCAFC 105

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 4 June 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 2 alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.

   Background

4. In this case, the first named applicant - Bangladeshi national Mrs Farhana Rahman -

   
   

   is seeking the visa in Direct Entry stream to work in the nominated position of Cook with Alam Investments Pty Ltd (the Company).

5. The delegate refused to grant the visas on the basis Mrs Rahman did not meet cl.187.233(3) of Schedule 2 to the Regulations because the Company withdrew its nomination application in relation to her. As a result, the Department refused the applicants’ Subclass 187 visa applications.

6. On 29 March 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse their Subclass 187 visa application. The Tribunal informed the applicants that, on 23 October 2018, the Company withdrew its nomination application which identified Mrs Rahman as the nominee and, consequently, there is no approved nomination made by the Company in relation to her. As a result, the position to which Mrs Rahman’s Subclass 187 visa application relates cannot meet the criteria in cl.187.233 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105 (Singh’s case), this is a ‘once off’ process. 

7. Mrs Rahman provided a response to the Tribunal’s s.359A letter on 10 April 2019. In her response, she noted that she is yet to receive access under the Freedom of Information Act to the Department’s file and that she requires the Department’s file in order to respond to the Tribunal’s letter of 29 March 2019. 

8. The Tribunal invited the applicants to a hearing on 2 May 2019.  On 1 May 2019, Mrs Rahman provided the Tribunal with a Medical Certificate indicating she has an (undisclosed) medical illness and will be unfit for work from 1 May 2019 to 3 May 2019 inclusive.  In the circumstances, she requested the Tribunal reschedule the hearing.  Accordingly, the Tribunal invited the applicants to attend a hearing on 17 May 2019.

9. The Tribunal sent a courtesy reminder of the rescheduled hearing via SMS to Mrs Rahman’s mobile telephone number on 10 May 2019 and 16 May 2019. 

10. No response was received from the applicants inviting them to the hearing on 17 May 2019.  

11. The hearing invitation stated that, if the applicants did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicants to appear before it. 

12. The applicants did not appear before the Tribunal on the day and at the scheduled time and place. No request for an adjournment to the hearing was received. Having reviewed its file, the Tribunal is satisfied that the applicants were properly invited to a hearing in accordance with the Act, the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicants about the hearing. No satisfactory reason for the applicants’ non-appearance has been given.

13. In these circumstances, and pursuant to s.362B(1A)(a) of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

14. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether there is an approved nomination in relation to Mrs Rahman.

    Nomination of a position

16. Clause 187.233 of Schedule 2 to the Regulations, as applicable in this case, is set out in full in the Attachment to this decision.  Essentially, it requires that that the position to which the application relates must 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 by the primary visa application as part of the current Subclass 187 visa application.  

17. 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 (emphasis added);

    ·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.

18. The Company’s nomination application was withdrawn from the Department. In the circumstances, as the nomination made by the Company for the position of Cook to which Mrs Rahman’s Subclass 187 visa application relates has not been approved, it follows that she does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations. Therefore, cl.187.233 of Schedule 2 to the Regulations is not met.

19. Mrs Rahman 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 stream, the Temporary Residence Transition stream.  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.

20. Since Mrs Rahman does not satisfy the primary criteria for the grant of a Subclass 187 visa, the second and third named applicants - her partner Mr Anm Wahid Ullah Bhuiyan and the couple’s 3 year old son Master Tahseen Bhuiyan - cannot satisfy the secondary criteria for the grant of the visa.  There is no evidence before the Tribunal to indicate that Mr Bhuiyan meets the primary requirements for grant of the visa. 

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT - Extract from the Migration Regulations 1994

    Schedule 2

    ..

    Part 187

    …

    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.

    oOOo