Sikandar (Migration)

[2020] AATA 4541

Sikandar (Migration) [2020] AATA 4541 (19 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Saad Sikandar
Miss Rabia Saad
Mrs Nadia Saad

CASE NUMBER:  1801274

HOME AFFAIRS REFERENCE(S):          BCC2017/2274693

MEMBER:Danielle Galvin

DATE:19 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 19 October 2020 at 10:53am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Recruitment Consultant – 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

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 27 June 2017. 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 primary applicant Saad Sikandar, is seeking the visa in Direct Entry stream, to work in the nominated position of Recruitment Consultant ANZSCO Code no. 223112 for the nominator, HUMAN LINK PTY LTD.

5. On 5 January 2018 the delegate refused to grant the visas because the primary applicant, did not meet r.187.233(3) of Schedule 2 to the Regulations because the nomination of the position to which the application relates was refused by the department on 24 November 2017. On 27 November 2017 the primary applicant was invited to comment on the nomination refusal decision. The primary applicant did not respond within the prescribed 28 days to do so. The secondary applicants, Rabia Saad and Nadia Saad had not made any claim towards satisfying this class of visa other than as a claimed member of Saad Sikandar’s family unit and as a consequence of his failure to satisfy r.187.233(2) of the regulations, they did not satisfy r.187.311 and their visa applications were also refused.

6. On 22 September 2020 the Tribunal invited the visa applicants to respond to or give comments on information that the application for approval of the nominated position made by the nominator was refused by the delegate and the review application brought by the nominator had been dismissed by the Tribunal on 7 September 2020 for no appearance at the scheduled hearing and that if the Tribunal relied on the information that there was no approved nomination in place the applicants’ review application may fail. A response in writing was required by 6 October 2020. No response was received by the Tribunal.

7. Given that the applicants did not provide comments on or respond to the information within the prescribed period s. 359C of the Act applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal. The effect of ss. 360(3), 359C and 363A is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear. The Tribunal is of the view that the applicants have had a reasonable time in which to provide any information, upon which they might rely in support of the review. In these circumstances, the Tribunal has decided to proceed to make a decision.

8. As the primary applicant is not the subject of an approved nomination at the time of this decision, the Tribunal cannot be satisfied that the requirements of r.187.233(3) have been met. Therefore, the primary applicant does not satisfy the primary criteria for the grant of the visa. There is no evidence before the Tribunal that the primary applicant has satisfied the secondary criteria by establishing that he is a member of the family unit of the holder of a subclass 187 visa and therefore he does not meet r.187.311.

9. Accordingly, the Department’s decision in relation to the primary applicant is affirmed.

10. The secondary applicants, made no claims against the primary criteria for the grant of a subclass 187 visa and there is no evidence before the Tribunal that they satisfy the primary criteria, therefore they do not meet r.187.233(3) of the regulations. There is no evidence before the Tribunal that they meet the secondary criteria and therefore do not meet r.187.311.

11. For these reasons, the Tribunal has concluded that the decision under review should be affirmed.

12. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Danielle Galvin
    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.