Saadat (Migration)

Saadat (Migration) [2023] AATA 725 (3 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Hanan Saadat
Ms Mamoona Bashir
Mr Rana Musa Saadat
CASE NUMBER:  1931342
HOME AFFAIRS REFERENCE(S):          BCC2019/3810519
MEMBER:Terrence Baxter
DATE:3 January 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 03 January 2023 at 9:34am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Customer Service Manager – no response to s.359A invitation – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311
CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicants applied for the visas on 1 August 2019. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
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 Customer Service Manager for Saadi Retailers Pty Ltd (the nominator).
The delegate refused to grant the visas on 18 October 2019 because the applicant did not satisfy the provisions of the Regulations.
The delegate also found that the second named and third named applicants could not be granted Subclass 187 visas, as they did not satisfy the provisions of the Regulations.
The applicants lodged an application for review of the delegate’s decision with the Tribunal on 4 November 2019.
On 5 December 2022, the Tribunal wrote to the applicants pursuant to s 359A of the Act inviting them 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 particulars of the information were as follows:
On 30 November 2022, the Tribunal affirmed the decision not to grant an Employer
Nomination lodged by Saadi Retailers Pty Ltd.
This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl.187.233(1).
If we rely on this information in making our decision, we may find that Mr Hanan
Saadat does not meet cl.187.233(3), which requires the nomination be approved, and affirm the decision under review.
We may subsequently find that Ms Mamoona Bashir and Mr Rana Musa Saadat do
not meet the secondary visa criterion cl.187.311, which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of a visa and who holds a Subclass 187 visa, and affirm the decision under review in respect of their applications.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 19 December 2022.
The Tribunal is satisfied that this invitation was properly dispatched to the applicants’ email address. The applicants have failed to comment on or respond to the information within the prescribed time for responding to the invitation. No response to that invitation has been received by the Tribunal at the time of this decision.
Where a review applicant is invited to comment on or respond to information in accordance with s 359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the applicants’ views on the information, according to s 359C(2) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal in accordance with s 360(3) of the Act. Of note, the effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear before it, as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.
The Tribunal has considered whether it should take further action to obtain the applicants’ views on the information referred to in paragraph 8 above. Although the applicants have not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicants have been aware since 18 October 2019 of the reasons for the visa application being refused, and also that the implications of not commenting on or responding to the information referred to in the invitation from the Tribunal of 5 December 2022 were set out in that correspondence.
In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicants’ views on the information referred to in the invitation from the Tribunal of 5 December 2022 or to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cl 187.233 and cl 187.311 of Schedule 2 to the Regulations.
Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the applicants’ views on the information referred to in the aforementioned invitation and having due regard to the documentary material before it.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether there is an approved nomination.
Nomination of a position
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. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.
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
·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 of the Regulations); 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.
Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the position of Customer Service Manager approved, with the applicant as nominee, on 1 August 2019. The nomination application was refused on 18 September 2019 and the nominator sought review of that decision with the Tribunal on 8 October 2019.
On 30 November 2022, the Tribunal (as presently constituted) affirmed the decision to refuse the nomination.
The Tribunal notes that the application for nomination for the position of Customer Service Manager has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application. Accordingly, cl 187.233(3) is not met.
Therefore, cl 187.233 is not met in respect of the applicant.
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 relation to the second named and third named applicants, the Tribunal notes that cl 187.311 of Schedule 2 to the Regulations requires that a secondary visa applicant be 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. As the applicant has not met the requirements for the grant of a Subclass 187 visa and is not the holder of a Subclass 187 visa, it follows that the second named and third named applicants do not satisfy the requirements of cl 187.311. The Tribunal finds accordingly.
DECISION
The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
Terrence Baxter
Member

ATTACHMENT A
187.233(1)     The position to which the application relates is the position:
(a)nominated in an application for approval that:
(i)identifies the applicant in relation to the position; and
(ii)is made in relation to a visa in a Direct Entry stream; and
(iii)seeks to meet the requirements of subregulation 5.19(12); 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.

[2023] AATA 725

3 January 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Jurisdiction

Procedural Fairness

Statutory Construction