Sadaqat (Migration)

[2019] AATA 4638

Sadaqat (Migration) [2019] AATA 4638 (1 August 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Muhammad Sadaqat

CASE NUMBER:  1811769

DIBP REFERENCE(S):  BCC2017/114161

MEMBER:  Kate Millar

DATE AND TIME OF

ORAL DECISION AND REASONS:          1 August 2019 at 9:50 am (SA time)

DATE OF WRITTEN RECORD:               3 October 2019

PLACE OF DECISION:  Adelaide

DECISION:  The Tribunal affirms the decision under review.

Statement made on 03 October 2019 at 4:31pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – nomination not approved – sponsor withdrew review application – pending visa application – extension requested – recently been out of Australia – position not available anymore – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 187.233

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 April 2018 to refuse to grant the visa applicant a Regional Employer Nomination (Permanent) Subclass 187 visa under the Migration Act 1958 (the Act).

1. At the hearing on 3 October 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

MEMBER: This is an application for a review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant you a Regional Employer Nomination (Permanent) (Class RN) visa under section 65 of the Migration Act 1958.

You applied for the visa on 10 January 2017. At the time of application class RN contained one subclass, subclass 187, which is a regional sponsored migration scheme visa. The criteria for a subclass 187 visa are set out in part 187 of schedule 2 to the Migration Regulations 1994, and you have to meet the primary criteria to be granted the visa. In this case you applied seeking the visa in the direct entry stream, so you have to meet the requirements for the direct entry stream within that part. You sought the visa to work in a nominated position of pastry cook.

The delegate refused to grant the visa because you did not meet clause 187.233 of schedule 2 to the Regulations because you did not have an approved nomination of a position. The issue in this case is whether you have an approved nomination.

Clause 187.233 requires 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 nomination made as part of the current visa application. In addition, it also requires that the person who will employ you is the person who made the nomination, the nomination has been approved and it has not subsequently been withdrawn, there is no adverse information known to Immigration about the person who made it or associated with it, the position is still available to the applicant and the visa application was made no more than six months after the nomination position was approved.

In a letter dated 4 June 2019 it was put to you under section 359A of the Act that on 30 May 2019 your sponsor Toose Pty Limited withdrew its application for a review of the decision to refuse the nomination.

You were advised that the nomination must be approved to meet clause 187.233 and that if you did not satisfy the essential criteria for the grant of a view it must be refused. You sought an extension of time to respond to this information on the basis you had not been able to gather the required documentation. You were granted an extension; however, ultimately only provided a submission from your representative, an acknowledgement from the Department of receipt of a new visa application and advice that a new visa application was lodged on 16 April 2019.

In the response it was submitted you would apply for another visa and wanted the decision deferred for several months pending the outcome of a new visa application so that you can live and work in Australia pending the outcome of your visa application. As you cannot meet the criteria for the visa, I do not consider it proper to delay in order to allow you to lodge a different application.

You have recently been out of Australia for a period of three months, and I can see no reason why you would not be able to return. I do not accept that it will be difficult for you if you have to leave the country and return because, as I said, you have recently been out of Australia for three months, in any event.

So in this particular case I specifically find that there is no approved nomination under clause 183.233, subclause (3) which is an essential requirement for the grant of the visa. You also made it clear that the position is not available to you anymore, in fact, you are not working as a pastry cook, you are working as a courier driver and you said you are looking for work as a pastry cook at the moment. You also said that in the past when you were working for your sponsor you were part-time and that you have also done some taxi driving or driving for income.

So in this case I find that clause 187.233 is not met. You 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 you to be granted a visa in the direct entry stream has not been met, the decision under review must be affirmed. So my decision today is to affirm the decision of the delegate to refuse to grant you the visa.

DECISION

1. The Tribunal affirms the decision under review.

Kate Millar Senior Member