Rahman (Migration)

[2021] AATA 1420

Rahman (Migration) [2021] AATA 1420 (12 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Md Hafizur Rahman
Mrs Kanije Fatama

CASE NUMBER:  1925980

HOME AFFAIRS REFERENCE(S):          BCC2017/2480496

MEMBER:Stavros Georgiadis

DATE:12 April 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 12 April 2021 at 11:32am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Motor Mechanic – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
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 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 12 July 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 Motor Mechanic (ANZSCO 321211) with the nominator employer, AMPEG PTY LTD.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because there was no approved nomination in relation to the nominated position. The delegate also found the second named 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, and therefore, did not satisfy cl.187.311.

6. The applicants appeared before the Tribunal on 12 April 2021 to give evidence and present arguments.

7. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. 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 aiming to provide 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. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

8. The applicants were represented in relation to the review by their registered migration agent, but the representative was not at the hearing.

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 the applicant meets the requirements of cl.187.223 for grant of the (Class RN) Subclass 187 visas in respect of all applicants.

    Nomination of a position

11. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

12. 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 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.

13. On 15 February 2021 the Tribunal sent a s.359A letter inviting the applicants to comment on, or respond to, adverse information that would be the reason, or part of the reason, for affirming the decision under review. The particulars of the information sent to the applicants are: … “…

    · The application for approval of the nominated position made by Ampex Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but the Tribunal found that it did not have jurisdiction to conduct a review. This means that the nominator’s application for the nominated position has not been approved.

    This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.

    If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review. …”

14. At the hearing, the Tribunal put the above to the applicants in accordance with the procedure set out in s.359AA of the Act.  The applicant responded straight away claiming he had no control over the employer’s application for review of the nomination refusal decision and should not be penalised for his employer’s late application. This is consistent with the written response received from the applicant to the aforementioned s.359A letter sent.  The Tribunal accepts the applicant’s submission that the timing was out of his direct control but put to the applicants that nonetheless, there remains a requirement that there is an approved nomination in relation to the position in order for the Subclass 187 visa applications to succeed: cl.187.233(3).  The applicants’ response, which the Tribunal accepts, was that they understand and accept that an approved nomination is an essential requirement for approval of their Subclass 187 visas.

15. The Tribunal notes the review by the Tribunal on 25 May 2020 in the related AAT casefile 1924238 found no jurisdiction to decide the matter relating to the nomination refusal as the application was lodged out of time.  This means the delegate’s decision to refuse the nomination of the position made on 5 August 2019 remains in force.

16. The Tribunal finds that since the position to which the application relates has not been approved, the applicant does not satisfy cl.187.233(3) of the Regulations.

17. Therefore, cl.187.233 not met.

18. 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 in respect of all applicants including the second named applicant as claimed member (spouse) of the same family unit as the primary applicant: cl.187.311.

    DECISION

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

    Stavros Georgiadis
    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.