Shaikh (Migration)

[2019] AATA 6720

Shaikh (Migration) [2019] AATA 6720 (12 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shahrukh Salimbhai Shaikh

CASE NUMBER:  1713929

HOME AFFAIRS REFERENCE(S):          BCC2015/2490639

MEMBER:Terrence Baxter

DATE:12 December 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 12 December 2019 at 11:37am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – Position of Contract Administrator – no approved nomination decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, 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 Immigration and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 27 August 2015. 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 (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 Direct Entry stream, to work in the nominated position of Contract Administrator.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations which required him to be the subject of an approved nomination. The delegate found that the nomination lodged by Kadri Training Pty Ltd was refused on 9 May 2017 and that accordingly the applicant did not satisfy cl.187.233(3) and did not meet cl.187.233 as a whole as required.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 29 June 2017.

7. The applicant appeared before the Tribunal on 9 October 2019 to give evidence and present arguments.

8. The applicant was represented in relation to the review by his registered migration agent.

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 there is an approved nomination.

    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 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 r.1.13A and r.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. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the applicant’s nominator, Kadri Training Pty Ltd, made an application to have the position of Contract Administrator approved, with the applicant as nominee, to the Department on 25 August 2015. The nomination application was refused on 9 May 2017 and Kadri Training Pty Ltd sought review of that decision with the Tribunal on 26 May 2017.

14. On 20 November 2019, the Tribunal (as presently constituted) affirmed the decision to refuse the nomination.

15. On 21 November 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting him to comment or respond to information which the Tribunal considered would, subject to his 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 20 November 2019, the Tribunal affirmed the decision not to grant an Employer
    Nomination lodged by Kadri Training 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 you do not meet cl.187.233(3), which requires the nomination be approved, and affirm the decision under review.
    You are invited to give comments on or respond to the above information in writing. Your comments or response should be received by 5 December 2019.

16. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The applicant failed to comment on or respond to the invitation within the prescribed time for commenting on or responding to the invitation. No comment on or response to that invitation has ever been received by the Tribunal.

17. 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 information according to s.359C(2) of the Act.

18. The Tribunal has considered whether it should take further action to obtain the applicant’s views on the information referred in paragraph 15 above. Although the applicant has 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 applicant additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicant has been aware since 9 May 2017 of the reasons for the visa application being refused, and also that the implications of not providing the information requested in the invitation from the Tribunal of 21 November 2019 were set out in that correspondence. The Tribunal has also taken into account that the applicant was advised at the hearing on 9 October 2019 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by Kadri Training Pty Ltd.

19. In these circumstances, the Tribunal considers that the applicant has 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 applicant’s views on the information referred to in the invitation from the Tribunal of 21 November 2019 or to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant criteria under cl.187.223 of Schedule 2 to the Regulations.

20. The Tribunal notes that the application for nomination for the position of Contract Administrator has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application.

21. Therefore, cl.187.233 is not met.

22. 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

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

    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 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.