Sultan (Migration)

[2020] AATA 2298

Sultan (Migration) [2020] AATA 2298 (1 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bilal Sultan

CASE NUMBER:  1914485

HOME AFFAIRS REFERENCE(S):          BCC2017/2018449

MEMBER:Phoebe Dunn

DATE:1 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 01 June 2020 at 12:01pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related position nomination application withdrawn and business closed – applicant’s residence, study and work history – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

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 7 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Café & Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.187.233(5) of Schedule 2 to the Regulations because the related nomination application lodged by Prime Sector Pty Ltd was withdrawn by the nominator on 12 April 2019 and as such the nominated position was no longer available to the applicant.

6. By letter dated 10 February 2020, the applicant was first invited to a hearing of this matter in Melbourne on 10 March 2020.  By email received on 13 February 2020, the applicant requested that the location of the hearing be changed to Darwin. By email sent on 17 February 2020, the Tribunal responded advising that the Tribunal was arranging for the applicant to appear by telephone or video-link from Darwin and requested that the applicant indicate his preference. By email received on 17 February 2020, the applicant stated that he would like to attend the hearing in person, but by further email received on 18 February 2020, the applicant stated that he was happy to attend the hearing via video-link but requested that the hearing be postponed to ‘a later date after March’ on the basis that he was undertaking a course of study and could not attend the hearing on the specified date and time. By letter dated 2 March 2020, the Tribunal rescheduled the hearing to 1 April 2020 as a video hearing.

7. By email received on 2 March 2020, the applicant sought a further postponement of the matter, on the basis that “I am doing my security operations course training until 5th April. I will not be able to pass if I miss a day and lose the fees paid.” The Tribunal agreed to this further postponement request and rescheduled the hearing to 16 April 2020 as a video hearing.

8. Due to the COVID-19 pandemic, the video hearing scheduled for 16 April 2020 was changed to a telephone hearing and the applicant was advised of this change of hearing type by letter dated 26 March 2020.  By email sent on 31 March 2020, the applicant sought a further postponement of the hearing on the basis that his parents were not well with COVID-19, it was a stressful time for him, and he was not prepared.  The Tribunal requested that the applicant provide further details and by email sent on 6 April 2020, the applicant advised that :

   I made an appointment with my Gp on last Friday to get a medical certificate but my appointment was cancelled on Friday morning. My doctor has taken 3 weeks off. I have ben (sic) told that other doctors don’t see new patients because they don’t know my medical history.

   I want to request that if possible please reschedule this hearing to a later date.

9. By letter dated 6 April 2020, the Tribunal postponed the hearing to a date to be advised.

10. By letter dated 7 April 2020, the Tribunal wrote to the applicant in accordance with s.359A of the Act, inviting the applicant to comment on adverse information that the Tribunal considered would, subject to any comment or response from the applicant, be the reason or part of the reason for affirming the decision under review. The letter included the following particulars of the adverse information:

    ·On 12 April 2019, the nomination application lodged by Prime Sector Pty Ltd (the nominator) for the nominated position of Café or Restaurant Manager, being the nomination in respect of which the applicant’s Subclass 187 visa declaration was made, was withdrawn by the nominator, and this means that the nomination has not been approved as required under cl.187.233(3) of the Regulations. 

11. In its letter, the Tribunal explained that this information was relevant to the review because it is a requirement for the grant of a Subclass 187 visa that the nomination identified in the applicant’s Subclass 187 visa application has been approved. The Tribunal further explained that if the Tribunal was to rely on the information in making its decision, the Tribunal may find that the applicant is not the subject of a current 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 affirm the decisions under review. 

12. The applicant was invited to comment on or respond to the information in writing, or to seek an extension of time within which to comment on or respond to the information, by 21 April 2020. By email received on 20 April 2020, the applicant responded as follows:

    I would like you to consider some circumstances while deciding the fate of my application.

    I have been living in Australia for over ten years trying to get permanent residency. I like the lifestyle and have blended into the system. I have lived in Queensland, Victoria and now living in the Northern territory. I also get the chance to visit and drive through NSW and South Australia many times. I really love the country and want to raise my family here. I consider myself an Australian, I just don't have a paper to show that!

    I have been a very unlucky person. if you look at my immigration history, I have done Bachelors of commerce from Pakistan and completed cert IV, diploma of accounting and management from Australia. I could not apply for residency based on my education as an accountant because I did not had an Australian degree to get my skills assessed.

    I was working with Wilson security from September 2010. I was then sponsored on a 457 visa by Wilson security as a prison officer in 2012 but after working with them for almost 3 years they refused to sponsor me for residency application. I am attaching my skill assessment certificate for your reference.

    I then put in the current application for a 187 visa. I stayed on bridging visa for over 2 years but my sponsor closed the business and withdraw my sponsorship when my file was open.

    I got married in Pakistan in 2015. I applied for my wife visa three times to accompanied me but her applications were also refused, even the visit visa application because the immigration officer somehow thought that she will overstay her visa limit. I am living here for last five years without my wife and daughter.

    I have been living and working in Australia legally and paying my due taxes. I have never been involved in any criminal activity and always abiding to my visa conditions. I have worked in Australia as a security officer, prison officer, long haul heavy truck driver, cab driver and in hospitality in different states. I am currently working as a security officer in Darwin. I always had a job to support myself.

    I would like to request that considering my circumstances, I am granted the visa. I give my commitment to stay and work in regional area Darwin.

    Please refund my application fee if you decide to reject my application. I need that money to support myself and buy the air ticket when flight operations start.

    I thank you very much for taking the time to read through above, please call or write me if you need further information or clarification about anything.

13. By letter dated 28 April 2020, the Tribunal invited the applicant to a hearing of this matter scheduled for 14 May 2020.  By email received on 4 May 2020, the applicant again requested a postponement of the hearing of this matter as follows:

    I am currently working as a security officer at Northern Territory Government Covid 19 quarantine facility in Darwin. There are not many officers willing to work here.

    I want to request that if possible can you postpone this interview for 2 months.

14. By letter dated 5 May 2020, the Tribunal advised the applicant that it had carefully considered the applicant’s request for a further postponement but in this instance had declined the request.  The Tribunal stated that it did not consider the applicant had provided sufficient reasons to warrant a further adjournment of this matter noting the determinative issue under review in this case and the Tribunal’s obligation to provide a review mechanism that is fair, just, economical, informal, quick and proportionate.  The Tribunal stated that the hearing would therefore proceed as a telephone hearing at the scheduled date and time.

15. The applicant appeared before the Tribunal by telephone on 14 May 2020 to give evidence and present arguments.

16. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant consented to the hearing being conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the related nomination has been approved.

19. At the hearing, the applicant gave oral evidence about the background to this matter.  The applicant stated that he understood his visa application was refused because the nominator withdrew the nomination and closed the business without letting him or the Department of Immigration know.  He stated that he had only ever spoken to the nominator on the phone and had never met the nominator in person or been to the business before he got the visa refusal.  He stated that when he got a letter from the Department, he went to visit the nominator at the business address, and the nominating business was not there.  He stated that he was doubtful about whether there was ever a business there or position for him. He stated that he understood that as there was no approved nomination, his visa application could not be approved and he would have to return home.  The applicant stated that he had been trying to get permanent residency for over 10 years, but it had not been successful. 

20. The Tribunal stated that it understood that the circumstances were difficult, but reiterated that it did not have discretion regarding the requirement in cl.187.233(3) that the related nomination has been approved.

    Nomination of a position

21. 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.

22. 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 r.1.13A and r.1.13B of the Regulations); 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.

23. On 12 April 2019, the application lodged by Prime Sector Pty Ltd (the nominator), for the nominated position of Café or Restaurant Manager, being the nomination in respect of which the applicant’s Subclass 187 visa declaration was made, was withdrawn by the nominator. Therefore, the related nomination has not been approved as required under cl.187.233(3) of Schedule 2 to the Regulations. Accordingly, cl.187.233(3) is not met.

24. Therefore, cl.187.233 is not met.

25. 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

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

    Phoebe Dunn
    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.