Sultan (Migration)

[2021] AATA 5603

Sultan (Migration) [2021] AATA 5603 (11 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Faheem Sultan

CASE NUMBER:  1833489

HOME AFFAIRS REFERENCE(S):          BCC2017/4367435

MEMBER:Amanda Ducrou

DATE:11 October 2021

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 11 October 2021 at 11:22am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Retail Manager –applicant failed to provide the requested information – applicant failed to attend tribunal hearing – nominator withdrew their nomination review application – not the subject of an approved nomination–decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 379
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 (the Act).

2. The applicant applied for the visa on 20 November 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 first named applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (ANZSCO 142111).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the related nomination application lodged by the nominator, Shree Hanumante Pty Ltd, being the nomination referred to in cl 187.233(1), was withdrawn by the nominator. The nomination application was, therefore, no approved and, as such, there was no approved nomination.

6. The Tribunal received an application for review from the applicant on 14 November 2018. The Tribunal received a copy of the delegate’s decision with the application for review.

7. On 7 October 2020 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to appear by telephone to give evidence and present arguments at a hearing on 16 November 2020 at 10:30am (WA time), 1:30pm (VIC time). The letter was sent by email to the applicant at the email address provided in connection with the review.

8. The hearing invitation listed the contact telephone number recorded by the Tribunal for the applicant. The invitation asked the applicant to advise if this is not the correct number or if they would prefer the Tribunal to call them on another number. The invitation set out information about arrangements for the hearing, including the estimated duration of the hearing and that a Tribunal officer would contact the applicant close to the hearing time to ensure that the telephone connection is working. The invitation asked the applicant to advise the Tribunal as soon as possible if they would not be able to participate in the telephone hearing. It went on to advise the applicant that if they were not advised that an adjournment was granted, they must assume that the hearing will go ahead. The invitation stated that if the applicant did not participate in the scheduled hearing (that is, if the applicant did not answer their phone at the scheduled date and time) the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the application for review without any further consideration of the application or the information before the Tribunal.

9. The Tribunal sent the applicant SMS reminders about the hearing five business days (on 9 November 2020) and one business day (on 13 November 2020) before the scheduled hearing. The applicant did not respond to the SMS messages or contact the Tribunal. The SMS messages were not returned as undelivered.

10. On 16 November 2020 a Tribunal Officer made four attempts to contact the applicant on the telephone number listed as the contact telephone number for the review, being the same telephone number listed on the hearing invitation. The attempts were made at: 1:28pm, 1:34pm, 1:43pm and 1:45pm (VIC time). The calls were not answered. Each call was automatically directed to voicemail.

11. It being open to the Tribunal to make a decision on the review without taking any further action to allow or enable the applicant to appear before it or to dismiss the application without any further consideration of the application or information before the Tribunal, the Tribunal considered whether it should schedule a hearing for a later date and invite the applicant to appear and give evidence and present arguments. The Tribunal also considered whether it should adjourn the review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

12. Having reviewed the file the Tribunal is satisfied that the applicant was properly invited to the hearing scheduled for 16 November 2020 in accordance with s 379A(5) of the Act. The hearing invitation was not returned to sender and two separate SMS reminders were sent to the applicant. The SMS reminders were not returned as undelivered. The calls made by the Tribunal officer for the hearing were made to the telephone number that the applicant provided in connection with the review, being the same mobile telephone number listed on the application for review.

13. The Tribunal had regard to the confined legal nature of the matter at issue in the review, which is whether the nomination linked to the applicant’s Subclass 187 visa application is approved as well as to the circumstances of the applicant and to the Tribunal’s objective of providing a mechanism of review that, amongst other things, is fair, just, economical and quick. The Tribunal took into account that the Tribunal was not contacted by the applicant, or by any other person authorised by the applicant to explain that the applicant would not be able to participate in the hearing. The applicant or any other person authorised by the applicant did not make a request to postpone the hearing or contact the Tribunal in response to the multiple calls and messages from the Tribunal or subsequently to explain why the applicant had not participated in the hearing or to indicate when the applicant may be in a position to appear and give evidence at the hearing.  In these circumstances, the Tribunal considers that the applicant has had a fair opportunity to give evidence and present arguments at a hearing and the Tribunal determined to proceed without taking further steps to offer another hearing to the applicant and not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review to allow the applicant additional time to demonstrate that he meets the requirements for the grant of the visa. Pursuant to s 362B(1A)(b) of the Act, the Tribunal decided to dismiss the application without further consideration of the application or the information before the Tribunal and without taking any further action to enable the applicant to appear before it.

14. On 8 December 2020 the Tribunal wrote to the applicant advising that as they had failed to attend the schedule hearing on 16 November 2020, the Tribunal had decided to dismiss the application for review. The Tribunal’s statement of decision to dismiss the application was attached to the letter together with an information sheet about the dismissal of applications. The Tribunal’s letter informed the applicant that they may apply, in writing, for reinstatement of the application by 22 December 2020, setting out why they failed to appear at the hearing and provide any other information they want the Tribunal to take into consideration when deciding whether the reinstatement application should be granted. The letter and the statement of decision to dismiss the application were sent by email to the applicant at the email address provided in connection with the review.

15. On 21 December 2020 the Tribunal received an email from the applicant requesting the reinstatement of the application for review. The email states that the applicant was waiting for the Tribunal’s call for the hearing as scheduled but did not receive any call and had checked their voicemail but there were no messages.

16. On 23 December 2020 the Tribunal wrote to the applicant advising that the application for review had been reinstated and that the Tribunal would continue to conduct the review. The Tribunal’s statement of decision to reinstate the application for review was attached to the letter. The letter and the statement of decision were sent by email to the applicant at the email address provided in connection with the review.

17. On 7 May 2021 the Tribunal wrote to the applicant and invited the applicant to appear by telephone to give evidence and present arguments at a hearing on 25 May 2021 at 8:30am (WA time), 10:30am (VIC time). The Tribunal’s letter contained the same information about the hearing arrangements as the Tribunal’s letter to the applicant of 7 October 2020. The letter was sent by email to the applicant at the email address provided in connection with the review.

18. On 19 May 2021 the Tribunal received an email from the applicant stating that they were willing to take part in the hearing as specified. A Response to hearing invitation form (MR 19) dated 18 May 2021, signed by the applicant, was attached to the email. In the MR 19 the applicant answered “Yes” to the question: “Will you take part in the hearing scheduled for 25 May 2021?”. The applicant answered “No” to the questions: “Is there any issue that may affect your ability, or that of any other person participating, to take part in the hearing (e.g. a health problem or disability)?”; “Do you believe that you or another person will experience difficulty participating in the hearing or the hearing cannot be conducted as arranged in the hearing invitation?”; and “Do you intend to rely on any documents at the hearing, e.g. written witness statements, written submissions, country information, or other evidence?”.

19. On 24 May 2021 the Tribunal received an email from the applicant stating that they were not able to attend the hearing because of their medical condition. A letter dated 21 May 2021 from Dr S Y Jehan, general practitioner and copies of medication prescriptions dated 13 May 2021 and 21 May 2021 for medication were attached to the email. Dr Jehan’s letter states that the applicant has ongoing severe mental health problems, is on medication and is being seen regularly for follow up. Dr Jehan states that, in his medical opinion, the applicant is currently unfit to attend the scheduled hearing. The letter does not set out when the applicant consulted Dr Jehan or specify when, in Dr Jehan’s opinion, the applicant will be fit to give oral evidence at a hearing.

20. On 24 May 2021 the Tribunal wrote to the applicant advising that his request for the hearing to be postponed was granted and that the hearing had been rescheduled. The letter set out the new hearing date and time and invited the applicant to appear by telephone to give evidence and present arguments at a hearing on 2 June 2021 at 9:30am (WA time), 11:30am (VIC time).The letter contained the same information about the hearing arrangements as the Tribunal’s letters to the applicant of 7 October 2020 and 7 May 2021. In addition, the letter set out (in summary) the AAT COVID-19 Special Measures Practice Direction – Migration and Refugee Division and the AAT Migration and Refugee Matters Practice Directions relating to requests for the adjournment of a scheduled hearing sought on medical grounds. The letter was sent by email to the applicant at the email address provided in connection with the review.

21. On 31 May 2021 the Tribunal received an email from the applicant attaching a letter dated 28 May 2021 from Dr Jehan stating that the applicant was not able to attend the hearing because of his medical condition. Copies of the prescriptions previously received were attached to the email. Dr Jehan states that the applicant was seen that day and also on 21 May 2021 and that the applicant asked Dr Jehan to provide further details regarding his condition and ability to attend a hearing. Dr Jehan’s letter set out the applicant’s condition and symptoms in more detail. Dr Jehan notes that the applicant is receiving treatment from a clinical psychologist with assessment every two weeks. Dr Jehan states that he is unable to suggest an exact timeframe for the applicant’s condition to improve sufficiently to attend a hearing but suggests that the hearing be deferred for two months with review of the applicant’s condition at the end of that time.

22. On 1 June 2021 the Tribunal wrote to the applicant advising that his request for the postponement of the hearing was granted and invited the applicant to appear by telephone to give evidence and present arguments at a hearing on 25 June 2021 at 9:00am (WA time), 11:00am (VIC time).The letter contained the same information about the hearing arrangements as the Tribunal’s letters to the applicant of 7 October 2020, 7 May 2021 and 24 May 2021. The letter was sent by email to the applicant at the email address provided in connection with the review.

23. On 25 June 2021, prior to the scheduled hearing time, the Tribunal received an email from the applicant stating that he could not attend the scheduled hearing because he was suffering from anxiety and depression. An assessment report and recommendations from Dr I Pattni, Clinical Psychologist, dated 24 June 2021, were attached. Dr Pattni’s report is consistent with the information provided by Dr Jehan and with diagnoses of depression (extremely severe), anxiety (extremely severe), and stress (severe). The report includes a detailed history of the conditions. The report did not specifically address the applicant’s capacity to take part in the hearing as scheduled. However, it is consistent with the applicant’s symptoms presenting difficulties for participation in a hearing. Dr Pattni’s recommendation is for the applicant to be given time to address his health and to continue with regular fortnightly psychotherapy/counselling sessions, for the next 10 sessions, with further mental health assessment at that time.

24. On 25 June 2021 the Tribunal wrote to the applicant advising that his request for the hearing to be postponed was granted and invited the applicant to appear by telephone to give evidence and present arguments at a hearing on 27 August 2021 at 9:00am (WA time), 11:00am (VIC time).The letter contained the same information about the hearing arrangements as the Tribunal’s letters to the applicant of 7 October 2020, 7 May 2021, 24 May 2021 and 1 June 2021. The letter was sent by email to the applicant at the email address provided in connection with the review.

25. The Tribunal sent the applicant a SMS reminder about the hearing five business days (on 20 August 2021) before the scheduled hearing. The applicant did not respond to the SMS message, which was not returned as undelivered.

26. On 26 August 2021 at 5:02am (VIC time) the Tribunal received an email from the applicant stating that he could not attend the hearing as scheduled because he was suffering from anxiety and depression. An assessment report and recommendations dated 23 August 2021 from Dr Pattni, written as a follow up of her earlier report dated 24 June 2021, were attached. Dr Pattni states that the applicant had been making slow progress and that on review his presentations are indicative of persistent depression (dysthymia). Dr Pattni notes the persistent nature of the applicant’s presentations and that, as is often the case, the applicant had been trying to self-manage his conditions. Dr Pattni’s recommendation is for the applicant to be encouraged to request extra time while working through his depressive cycle and for him to attend a general practitioner at his earliest convenience for reassessment of his medication.

27. The Tribunal considered whether, in the circumstances it was appropriate to postpone the hearing. Having regard to the medical information the Tribunal accepts that the applicant’s diagnosed conditions may have an adverse impact on the applicant’s ability to present his case at the hearing scheduled for 27 August 2021. However, the Tribunal notes that the most recent medical information, being the report from Dr Pattni dated 23 August 2021, contains no indication of whether or when the applicant’s ability to present his case at a hearing is likely to improve. Having reviewed the file, and taking account of the confined nature of the matter at issue in this review, the uncertainty of whether or when the applicant’s condition may improve and the objective of the Tribunal, the Tribunal declined to postpone the hearing and decided to refuse the applicant’s request for the hearing scheduled for 27 August 2021 to be postponed.

28. The Tribunal sent the applicant a SMS reminder about the hearing on 26 August 2021. The SMS message was sent at 11:01am (VIC time). The applicant did not respond to the SMS message or contact the Tribunal. The SMS message was not returned as undelivered.

29. On 26 August 2021 the Tribunal wrote to the applicant advising that his request for the hearing to be postponed was refused and that the hearing on 27 August 2021 at 9:00am (WA time), 11:00am (VIC time) would proceed via telephone as scheduled. The letter listed the contact telephone number recorded by the Tribunal for the applicant and asked the applicant to advise if this is not the correct number or if they would prefer the Tribunal to call them on another number. The invitation set out the same information about arrangements for the hearing as the Tribunal’s letters to the applicant of 7 October 2020, 7 May 2021, 24 May 2021, 1 June 2021 and 25 June 2021. The letter stated that if the applicant did not participate in the scheduled hearing (that is, if the applicant did not answer their phone at the scheduled date and time) the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the application for review without any further consideration of the application or the information before the Tribunal. The letter was sent by email to the applicant at 11:18am (VIC time) at the email address provided in connection with the review. The letter was not returned to the Tribunal as undelivered.

30. On 26 August 2021 a Tribunal officer made three calls to the telephone number listed as the contact telephone number for the review, being the same telephone number listed on the hearing invitation. The first call was made at 11:34am (VIC time). The call was not answered and was automatically directed to voicemail. The Tribunal officer left a voicemail message asking the applicant to telephone the Tribunal as soon as possible. The Tribunal officer provided the contact telephone number for the Tribunal in the message. The other calls were made at: 12:36pm and 1:52pm (VIC time). They were not answered and were automatically directed to voicemail. On 27 August 2021 the Tribunal officer made a further two calls to the telephone number listed as the contact telephone number for the review, being the same telephone number listed on the hearing invitation. The first call was made at 9:44am (VIC time). It was not answered and was automatically directed to voicemail. The Tribunal officer left a voicemail message asking the applicant to telephone the Tribunal urgently. The Tribunal officer provided the contact telephone number for the Tribunal in the message. The other call was made at 10:18am (VIC time). It was not answered and was automatically directed to voicemail.

1. On 27 August 2021 at the scheduled time for the hearing, a Tribunal Officer made three attempts to contact the applicant on the telephone number listed as the contact telephone number for the review, being the same telephone number listed on the hearing invitation. The last attempt was made at 1:05pm (VIC time). None of the calls were answered.

2. It is open to the Tribunal to make a decision on the review without taking any further action to allow or enable the applicant to appear before it or to dismiss the application without any further consideration of the application or information before the Tribunal. The Tribunal considered whether it should schedule a hearing for a later date and invite the applicant to appear and give evidence and present arguments. The Tribunal also considered whether it should adjourn the review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

3. Having reviewed the file, the Tribunal is satisfied that the applicant was properly invited to the hearing scheduled for 27 August 2021 in accordance with s 379A(5) of the Act. The request for the postponement of the hearing received from the applicant on 25 August 2021 demonstrates that the applicant was aware of the hearing as scheduled. The letter that the Tribunal sent to the applicant on 26 August 2021 advising of the refusal of the postponement request confirmed that the hearing would procced via telephone at 9:00am (WA time), 11:00am (VIC time) on 27 August 2021 as scheduled. That letter was not returned to sender. Two separate SMS reminders of the hearing were also sent to the applicant. They were not returned as undelivered. The calls made by the Tribunal officer to the applicant on 26 August 2021 and 27 August 2021 were made to the telephone number that the applicant provided in connection with the review, being the same mobile telephone number listed on the hearing invitation as that used in the calls that the Tribunal officer made to the applicant for the hearing on 27 August 2021 at the scheduled hearing time. Having regard to the confined legal nature of the matter at issue in the review, the applicant’s circumstances and the Tribunal’s objective, and taking into account that the Tribunal was not contacted by the applicant, or by any other person authorised by the applicant in response to the calls and messages from the Tribunal or provided with any indication of when the applicant may be in a position to appear and give evidence at a hearing, the Tribunal determined to proceed without taking further steps to offer another hearing to the applicant. Pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

4. The Tribunal considered, given the applicant’s circumstances, that it is appropriate to allow the applicant additional time in which to provide further evidence to support the review application. On 27 August 2021 the Tribunal wrote to the applicant advising that the applicant had not responded to the attempts to contact them for the hearing as scheduled on 27 August 2021. The Tribunal’s letter informed the applicant that as they had not participated in the hearing as scheduled it is open to the Tribunal to make a decision on the review without taking any further action to allow or enable them to appear or for the Tribunal to dismiss the application for review without any further consideration of the application or the information before the Tribunal. The letter went on to inform the applicant that the Presiding Member would not make a decision on the review until 10 September 2021 at the earliest. It advised the applicant that they may provide any information or documents in support of their case. The Tribunal’s letter informed the applicant that the information and documents were to be provided to the Tribunal by 10 September 2021. The letter was sent by email to the applicant at the email address provided in connection with the review.

5. On 9 September 2021 the Tribunal received an email from the applicant with attachments. The attachments include: the prescriptions for medication dated 13 May 2021 and 21 May 2021; the letter from Dr Jehan dated 28 May 2021; the assessment and recommendation reports from Dr Pattni dated 24 June 2021 and 23 August 2021(all already referred to above). The final attachment to the email is a statement from the applicant (not signed) regarding his health and requesting the postponement of the hearing for at least a further three months. The main points noted by the applicant in the statement are: the importance to him of attending a hearing to present his case personally including presenting evidence about his future and the studies that he has obtained in Australia; that his ability to present his case fairly is compromised due to his anxiety, depression and poor mental health; that the medical evidence he has presented confirms that he is not fit to attend a hearing; that his mental health and his situation have been impacted adversely by circumstances beyond his control, with the COVID-19 pandemic having particular impact on his mental health and general situation; and that he is hopeful that postponing the hearing by at least a further three months will allow him to prepare himself mentally and to focus at the hearing and that by working intensively with his therapist and with therapeutic support he will be able to present his case more fairly.

6. The email that the Tribunal received from the applicant on 9 September 2021 did not contain information or documents in support of the application for review or other medical information. The Tribunal considered whether it should adjourn the review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

7. In doing so, the Tribunal had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to defer its decision making processes indefinitely. The Tribunal also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014), which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (28 August 2014) where analogous issues were discussed.

8. The Tribunal considered whether, in the circumstances of this case, information that the applicant meets the requirements for the grant of the visa is likely to be forthcoming and whether the applicant has had a fair opportunity to provide relevant information or documents already, and the significance of the information or documents to the applicant. The Tribunal had regard to the fact that the application that the applicant made for the visa was refused by the Department on 31 October 2018 because the delegate concluded that the applicant had not demonstrated that there was an approved nomination. The applicant submitted a copy of the primary decision record with the review application. The Tribunal observes that the applicant has been aware for approximately 35 months of the reasons for the refusal of the application for the visa. The Tribunal notes that the information received from the applicant of 9 September 2021 indicates that the applicant wishes to provide information about his future and the studies he has obtained during his stay in Australia. However, the applicable criteria for the grant of the Subclass 187 visa application that is the subject of this review cannot be satisfied by that information, as in order for the criteria to be met for the grant of the visa to the applicant, the applicant must demonstrate that the nomination application linked to the visa application that he made on 20 November 2017 is approved.

9. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if or when the applicant may provide any further information in support of his review application. The Tribunal is not disposed to delay making a decision indefinitely.

10. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review further to allow the applicant additional time to demonstrate that he meets the requirements for the grant of the visa.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether there is an approved nomination.

    Preliminary matters

13. The Tribunal is in possession of a certificate regarding the disclosure of information given under s 376 of the Act. The certificate advised that disclosure of certain information would be contrary to the public interest because it may “disclose, or enable a person to ascertain the existence or identify of, a confidential source of information”. The Tribunal understands that it has a discretion regarding disclosure of information certified under s 376 and, that the Tribunal may, for the purpose of exercising its powers, have regard to the information and may, if it thinks appropriate having regard to any advice given by the Secretary, disclose the information and documents to the applicant or to any other person who has given written or oral evidence to the Tribunal. As such, it is possible to comply with s 359A and s 359AA of the Act.

14. While the Tribunal was of the view that the certificate is validly issued, the Tribunal did not provide a copy of the certificate to the applicant or exercise its discretion to give or disclose the information subject to the certificate (which relates to an anonymous “dob-in” allegation) to the applicant on the basis that the Tribunal’s attention in this review is directed solely to whether the nomination application made by Shree Hanumante Pty Ltd, being the nomination application that is linked to the visa application that the applicant made on 20 November 2017, is approved as required under cl 187.233(3) of Schedule 2 to the Regulations. The Tribunal is, therefore, satisfied that the information subject to the certificate is not relevant to this review and the Tribunal placed no weight on the information in this review. Emails received by the Tribunal also contain “dob-in” information. However, for the same reasons as set out earlier in this paragraph, the Tribunal is satisfied that the information in the emails is not relevant to this review and the Tribunal placed no weight on the information in the emails in this review.

15. On 12 May 2021 the Tribunal wrote to the applicant. The letter was sent by email to the applicant at the email address provided in connection with the review. The letter stated that it was sent to the applicant as the Tribunal is required under the Act to invite the applicant to comment on or respond to information which it considers would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. The letter provided particulars of the information, namely that the nominator had withdrawn the application it made for nomination of the applicant in the position of Retail Manager. The Tribunal’s letter explained that this information is relevant to the review because it is a requirement for the grant of the applicant’s visa that the position specified in the visa application is the subject of an approved nomination and if the Tribunal relies on this information in making its decision, it may find that the position specified in the visa application is not the subject of an approved nomination, and that this would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must then affirm the decision under review.

16. The letter invited the applicant to provide their comments or response by 26 May 2021. The letter noted that the applicant could request an extension of time provided that any such request was received by 26 May 2021, and went on to explain that if the comments or response to the information were not received within the period allowed, or as extended, the Tribunal may make a decision on the review without taking further action to obtain the applicant’s views on the information and that 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. The letters that the Tribunal sent to the applicant informed the applicant about the extension of the period allowed to provide the comments or response to 27 August 2021. The letter that the Tribunal sent to the applicant on 26 August 2021 confirmed that the applicant’s comments or response remained due by 27 August 2021. The Tribunal did not receive the applicant’s comments or response by 27 August 2021 and the Tribunal did not receive a request from the applicant or from any other person authorised by the applicant for a further extension of time to provide comments or a response. In its correspondence to the applicant the Tribunal stated that the letter it sent to the applicant on 12 May 2021 had been sent pursuant to s 359A of the Act. Having reviewed the file, the Tribunal notes that the information particularised in the letter was already included in the copy of the delegate’s decision that the Tribunal received from the applicant with the application for review. Therefore, s 359A of the Act does not apply to that information, being information that the applicant gave for the purpose of the application for review (s 359A(4)(b)). Accordingly, s 359C does not apply and the applicant does not lose their entitlement to a hearing by reason of their failure to provide comments or respond within the prescribed period. The reasons for the Tribunal’s determination to make its decision on the review without taking any further action to enable the applicant to appear before it have already been discussed and the Tribunal did not place weight on the applicant’s failure to provide comments or respond to the information in the letter sent to the applicant on 12 May 2021 in determining to proceed in this manner or otherwise with this review.

    Nomination of a position

17. 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.

18. 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.

19. In this case the applicant applied for a Subclass 187 visa on the basis of the nomination application lodged by Shree Hanumante Pty Ltd in respect of the applicant, being the nomination referred to in cl 187.233(1) of Schedule 2 to the Regulations. The nomination application was lodged with the Department on 19 May 2017. The nomination application was subsequently withdrawn by Shree Hanumante Pty Ltd and was not approved. As a consequence, on 31 October 2018 the applicant’s Subclass 187 visa was refused by the delegate on the basis that there was no approved nomination.

20. The nomination application was withdrawn by Shree Hanumante Pty Ltd on 19 September 2018 and as a consequence the nomination application was not approved. Shree Hanumante Pty Ltd has not applied for review in respect of the failure of the nomination application to be approved, being the nomination application linked to the Subclass 187 visa application made by the applicant. This means that the matter has been finally determined and there is no approved nomination as required under cl 187.233(3) of Schedule 2 to the Regulations. As a result, the requirement in cl 187.233(3) of Schedule 2 to the Regulations is not satisfied.

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.

    Amanda Ducrou
    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.