Shadalooei (Migration)

[2022] AATA 3459

Shadalooei (Migration) [2022] AATA 3459 (7 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shirin Shadalooei

REPRESENTATIVE:  Mr M Shamraiz Mehdi (MARN: 1465452)

CASE NUMBER:  1911687

HOME AFFAIRS REFERENCE(S):          BCC2018/897424

MEMBER:Alison Mercer

DATE:7 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 7 October 2022 at 12:57pm

CATCHWORDS
MIGRATION – Regional Employer (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – recruitment consultant – subject of approved position nomination – related nomination application refused and application for review withdrawn – legislative amendments mean requirement cannot be satisfied by new nomination – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A

Migration Regulations 1994 (Cth), Schedule 1, para 1114B(3)(d), Schedule 2, cl 187.233(3)

CASES

Hasran v MIAC [2010] FCAFC 40

Kaur v MIBP [2017] FCCA 564

MIAC v Li (2013) 249 CLR 332

Singh v MIBP [2016] FCCA 2229

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 25 February 2018. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Recruitment Consultant.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, which required that she was the subject of an approved nomination by her Australian employer. The delegate found that the nomination of the applicant by her employer, ST Secure Solutions Pty Ltd, was rejected by the Department on 10 April 2019. The delegate therefore found that the applicant did not meet the criteria for a subclass 187 visa in the Direct Entry stream and had not made any claims to meet any other streams.

6. The Tribunal received a review application from the application on 10 May 2019. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, M Shamraiz Mehdi, as her representative and authorised recipient for correspondence.

7. The Tribunal wrote to the applicant via her agent on 7 September 2022 to invite her to attend a telephone hearing on 6 October 2022.

8. On 12 September 2022, the Tribunal wrote again to the applicant via his agent to invite her, pursuant to s.359A of the Act, to comment on or respond to information held by the Tribunal that was potentially adverse to her case. Specifically, the Tribunal noted that:

   ·at the time the applicant made her visa application on 25 February 2018, she was nominated by her employer, ST Secure Solutions Pty Ltd, as a Recruitment Consultant;

   ·the Department rejected this application on 9 May 2019 because the delegate found that the applicant did not meet cl.187.233 of Schedule 2 to the Migration Regulations as she was not the subject of an approved nomination at the time of the delegate’s decision. The delegate’s findings were made on the basis that the applicant’s employer’s nomination of her for the occupation of Recruitment Consultant had been rejected by the Department on 10 April 2019;

   ·the applicant applied to the Tribunal on 10 May 2019 for review of the Department’s decision to reject her subclass 187 visa application;

   ·the Tribunal’s records indicated that ST Secure Solutions Pty Ltd also lodged an application for review of the decision to refuse its nomination with the Tribunal but that the Tribunal found on 20 June 2022 that it had no jurisdiction to review the refusal decision as the employer withdrew its review application on 18 June 2022; and

   ·accordingly, there was currently no approved nomination of the applicant by ST Secure Solutions Pty Ltd, and the decision to refuse the nomination was not under review by the Tribunal.

9. The Tribunal advised that this information was relevant to the review because, subject to her comments or response, it indicated that:

   ·the applicant was not the subject of an approved appointment made by the same employer who nominated her, as required by cl.187.233 and this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it was a requirement that the primary applicant met cl.187.233 at the time of decision; and

   ·there was no evidence that she met the criteria in the Temporary Residence Transition or Labour Agreement streams of the subclass 187 visa.

10. The Tribunal also noted that since 18 March 2018, major legislative amendments were made to the subclass 186 and 187 visa categories and their associated nominations, such that a nomination by a new employer now would not satisfy cl.187.233 in respect of a subclass 187 visa application lodged prior to 18 March 2018.

11. The Tribunal requested that the applicant provide her comments or response (or seek an extension of time to do so) by 26 September 2022, noting that if she failed to do so, she would lose her entitlement to a hearing, the hearing of 6 October 2022 would be cancelled, and the Tribunal might proceed to make its decision on the available evidence without taking further steps to obtain her views about the information.

12. The Tribunal did not receive any response or a request for an extension of time from the applicant or her agent by 26 September 2022. The Tribunal is satisfied that its s.359A letter was sent to the nominated email address provided in the review application for the applicant’s authorised recipient for correspondence. There is no evidence from the Tribunal’s electronic records that its email was undelivered or undeliverable.

13. On 27 September 2022, the Tribunal wrote again to the applicant via her agent to advise her that as she had not responded (or sought an extension of time to do so) by 26 September 2022, she had lost her right to a hearing and the hearing of 6 October 2022 had been cancelled. The Tribunal requested that she provide any further written evidence and/or documents that she wished to provide by 6 October 2022.

14. The Tribunal did not receive a response from the applicant or his agent by 6 October 2022, and has received no further communication from either of them to date.

15. The applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. 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 them to appear: Hasran v MIAC [2010] FCAFC 40.

16. The Tribunal has considered whether to defer its decision for a further period, but – in view of the fact that the Tribunal sent the applicant a s.359A letter about the criterion in dispute, and the fact that the applicant had the assistance of a registered migration agent but did not respond – the Tribunal has elected not to do so and instead has proceeded to make its decision on the available evidence. It considers it reasonable to do so in these circumstances, having regard to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

17. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

    Nomination of a position

18. 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.

19. 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.

20. As noted above, the delegate’s decision record (a copy of which was provided to the Tribunal by the applicant), the nomination of the applicant by ST Secure Solutions Pty Ltd, was refused by the Department on 10 April 2019.

21. As set out in the Tribunal’s s.359A letter, although ST Secure Solutions Pty Ltd sought review of that refusal decision with the Tribunal, the Tribunal (differently constituted) found that it had no jurisdiction to review that decision on 20 June 2022 as the company withdrew its review application.

22. Therefore, there is no evidence before the Tribunal that the applicant is the subject of an approved nomination by that (or any other) employer.

23. The Tribunal notes that it is a requirement for the Direct Entry stream (cl.187.233) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2]

    [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).

    [2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186)  - visa applications – [8.1.3] TRT – Position must be that for which the visa application wamade and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

24. This was the view taken in Singh v MIBP [2017] FCAFC 105[3]. The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.[4]

    [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

    [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]).

25. Although the Court’s comments were, strictly speaking, obiter, they are nonetheless persuasive in relation to subclass 187 visas in both the TRT and DE streams. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.187.223 or cl.187.233 (as applicable) unless there is also a review of that decision pending. There is no longer a nomination review pending in this case.

26. Moreover, the Tribunal notes that legislative changes took place on 18 March 2018 which affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version. While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.187.233 in relation to a subclass 187 visa application made prior to 18 March 2018, as would be the case here even if a new nomination were approved.

27. Accordingly, the Tribunal finds that the applicant cannot meet cl.187.233(3) and thus cannot meet cl.187.233 as a whole.

28. 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.

    decision

29. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Alison Mercer
    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.