Roy (Migration)

[2021] AATA 102

Roy (Migration) [2021] AATA 102 (21 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sourav Roy
Mrs Anindita Chowdhury
Miss Ahana Roy
Miss Anaya Roy

CASE NUMBER:  1811973

HOME AFFAIRS REFERENCE(S):          BCC2016/1614000

MEMBER:De-Anne Kelly

DATE:21 January 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 21 January 2021 at 10:27am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – refusal of related position nomination affirmed on review – applicant never worked in nominated position – possibility of future employment with sponsor – COVID-19 travel restrictions – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(1), (3), 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 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 2 May 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 (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 Cook.

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 the employer nomination by Nural Islam was refused being the nomination referred to in paragraph 187.233(1).

6. The applicants appeared before the Tribunal on 15 December 2020 to give evidence and present arguments. Due to COVID-19 the Tribunal is not conducting face-to-face hearings and visitors have been requested not to attend the Tribunal from 22 March 2020. The Tribunal determined that this hearing could be conducted by Microsoft Teams video conference and the applicant agreed to this format. There was a brief adjournment at the commencement of the hearing due to technical difficulties. The Tribunal asked the applicant if he could hear clearly and he advised that he could hear clearly.

7. The applicant was represented in relation to the review by its registered migration agent, Mr Mohammad Ahasan Ali (MARN: 0851085) of Kogarah NSW.

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 applicant meets cl.187.233(3) which provides as follows;

   (3)      The Minister has approved the nomination.

   Adjournments and extensions of time

10. The applicant requested and was granted an extension of time of 14 days to respond to a s359AA matter.

    Section 359AA of the Act

11. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.

12. Section 359AA provides as follows:

    (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)   if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii)orally invite the applicant to comment on or respond to the information; and

    (iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    Nomination of a position

13. 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.

14. 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.

15. At the hearing under s359AA of the Act the Tribunals advised the applicant that the employer Nural Islam was invited to a hearing on the 8 December 2020 however responded in writing on 1 December 2020 that they would not be attending the hearing and the Tribunal could make a decision on the papers without taking further steps to allow them to appear.

16. The Tribunal further advised that it had carefully examined the evidence it had to hand and found that the employer did not satisfy r.5.19(4)(d) and therefore r.5.19(4) and on 02 December 2020 affirmed the decision to refuse the employer nomination application. The Tribunal advised  that it is a requirement for the grant of the Visa that the position specified in the Visa application is the subject of an approved nomination and if the Tribunal relied on this information in making a decision, we may find that the position specified in the Visa application is not the subject of an approved nomination. This would mean they do not satisfy a requirement for the grant of the Visa and the Tribunal must affirm the decision under review.

17. The applicant chose to respond in the hearing and stated that the employer did not attend for some personal issue and was going to submit more information, but the Tribunal had already made the decision. It was noted that the Tribunal had emailed the employer applicant on 01 December 2020 and stated the hearing was cancelled as a result of the employers hearing response but if they had any questions they could contact the registry immediately and the email address and contact number for the registry were given to the employer. No request for an extension of time to provide further information was received from the employer and the Tribunal considered it was reasonable to move to a decision on the employer nomination refusal review.

18. The applicant advised that he had never worked for the employer as a cook. The applicant was given until 05 January 2021 to provide a written response. On 05 January 2021 the applicant wrote to the Tribunal advising that he had been unable to secure legal advice over the festive season and requested a further 14 days to respond. This was granted to 20 January 2021.

19. On 20 January 2021, the applicant wrote to the Tribunal stating that the employer was still interested in employing him on a full-time basis under the permanent visa. His situation is very uncertain, and the situation is beyond his control. He asks the Tribunal to consider his situation so he can stay in Australia until the current global pandemic is finished because it may pose a health risk to him and his family if they have to leave Australia if his visa refusal is affirmed.

20. The Tribunal has noted this request and the difficult circumstances the pandemic has imposed on many people however it also notes that Home Affairs has a number of interim measures to support temporary visa holders who are departing Australia for their home country and the following advice is found on their home page;

    Temporary visa holders impacted by COVID-19 can make arrangements to return to their home country, if border restrictions in that country allow.
    Temporary visa holders do not need an exemption to depart Australia. They can leave at any time, as long as border restrictions in their home country allow them to return.
    Remember the COVID-19 situation continues to change.
    Check each week:
    border restrictions
    availability of flights.
    Commercial flights are available from several major airports across Australia.
    You may also wish to find out if there are any private or government repatriation flights to your home country.
    If you would like further assistance to return home, you can contact your embassy or consulate in Australia.
    You can also register your details.
    We will provide your information to the Department of Foreign Affairs and Trade, which may provide this information to your home government (either overseas or represented by the embassy, consulate or High Commission in Australia). However, if you require assistance from your Embassy or Consulate, you are strongly advised to contact them directly. This service is only for temporary visa holders.

21. The Administrative Appeals Tribunal Act requires the Tribunal to act in a manner that is quick, fair, just, economical and informal. As such the Tribunal finds it is reasonable to move to a decision on this matter which has been before the Tribunal since April 2018.

22. Since the Tribunal has affirmed the employer nomination decision under review there is no approved nomination to satisfy cl.187.233(3) and the Visa applicant therefore does not meet cl.187.233(3).

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.

25. Mrs Anindita Chowdhury, Miss Ahana Roy and Miss Anaya Roy were secondary applicants on the application for a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa and sought to satisfy cl.187.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.187.311. This clause provides as below. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the Visa application.

    187.311
    The applicant:
    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

26. The secondary applicants made a combined application with the primary applicant and applied as the spouse and children and therefore as members of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa. Therefore, the primary applicant is not a person who holds a subclass 187 visa. The secondary applicants are members of the family unit of the primary applicant, who does not hold a subclass 187 visa. The secondary applicants therefore do not satisfy cl.187.311.

27. The secondary applicants do not meet cl.187.311 and the Tribunal affirms the decision not to grant the secondary applicants a subclass 187 visa.

    DECISION

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

    De-Anne Kelly
    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.