Shoaib (Migration)

[2023] AATA 2019

Shoaib (Migration) [2023] AATA 2019 (19 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adil Shoaib

REPRESENTATIVE:  Mr Thomas Griffiths (MARN: 1387008)

CASE NUMBER:  1914615

HOME AFFAIRS REFERENCE(S):          BCC2018/881539

MEMBER:Sheridan Aster

DATE:19 June 2023

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 19 June 2023 at 1:23 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Specialist Manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 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 23 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). 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 Specialist Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, which requires that the position to which the application relates has been nominated in an application approved by the Minister.

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. 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.

9. 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); 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.

10. The applicant was nominated to work as a Security Operations Manager (Specialist Manager, ANZSCO 139999) by the trustee for the U-SEC Unit Trust. The application for approval of the nominated position was refused by a delegate of the Minister on 16 April 2019. The nominator applied to the Tribunal for a review of that decision. On 31 May 2023, the Tribunal affirmed the decision not to approve the nomination.

11. On 2 June 2023, the Tribunal invited the applicant to comment on or respond to the above information. The letter outlined that the information was relevant to the review because 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: cl 187.233(3) of Schedule 2 to the Regulations.

12. It was also explained that the information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse the grant of the visa.

13. The invitation advised that if the comment or response was not provided in writing by 16 June 2023, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s views on the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

14. On 2 June 2023, the applicant’s representative requested an additional two weeks to respond to the invitation. No reason for the request was provided. As such, the Tribunal asked that the applicant provide a reason for the request along with supporting evidence.

15. On 15 June 2023, the Tribunal followed up on the request with the representative and again asked that the applicant provide a reason for the request for further time along with supporting evidence. The email correspondence confirmed that the due date remained as 16 June 2023.

16. On 16 July 2023, the representative advised that:

    My client has received legal advice concerning the decision made by Member Sheridan Lee [now Aster] on 31 May 2023 to affirm the decision under review to refuse the nomination application associated with my client’s visa.

    I have been instructed by my client to request further time in which any action stemming from this legal advice can be resolved.

    Any additional time that the Member is willing to provide my client given these circumstances is greatly appreciated.

17. The Tribunal has responded to the applicant’s request, explaining that if the nominator is concerned that the Tribunal made an error in its decision, the appropriate avenue through which to challenge that decision is in the courts. The Tribunal does not speculate in relation to matters of appeal.

18. The scope of the Tribunal in respect to the current review is limited to whether the application meets the requirements of cl 187.233 of Schedule 2 to the Regulations. The applicant requested additional time to comment on or respond to the information set out in the Tribunal’s invitation of 2 June 2023. The reason provided for requesting the extension was to allow additional time for action stemming from legal advice in respect to the related nomination to be resolved. The applicant did not provide comments, or a response, directed to the information in the Tribunal’s invitation within the prescribed period. Further, the applicant did not indicate that he would like to participate in a hearing.

19. The Tribunal is committed to providing accessible, fair, just, economical, informal, quick and proportionate reviews. Given the limited scope of the current application for review, the Tribunal did not grant an extension to comment on or respond to the invitation of 2 June 2023. The Tribunal advised the applicant that he had lost the entitlement to appear before the Tribunal.

20. For the reasons outlined above, the Tribunal finds that the position is not the subject of a nomination approved by the Minister as required by cl.186.233.

21. 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

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

    Sheridan Aster
    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.