Syed (Migration)

[2023] AATA 1732

Syed (Migration) [2023] AATA 1732 (6 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Isa Al Hasni Syed

REPRESENTATIVE:  Mr Manoj Nanda (MARN: 1568823)

CASE NUMBER:  1918231

HOME AFFAIRS REFERENCE(S):          BCC2018/964255

MEMBER:Wan Shum

DATE:6 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 06 June 2023 at 1:55pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – subject of an approved nomination – request for Ministerial referral declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
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 28 February 2018. At the time of application, Class RN contained 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 Café or Restaurant Manager. The related nomination was made by Xintai International Group Pty Ltd (the nominator), trading as Mr Food & Wine VIC, on 28 February 2018.

5. A delegate of the Minister decided not to approve the nomination and as a consequence, the delegate in this matter refused to grant the visa on the basis that the applicant did not meet cl 187.233 of Schedule 2 to the Regulations.

6. Both the nominator and the applicant sought review of those decisions. The applicant was represented in relation to the review by a registered migration agent. On 16 January 2023, the Tribunal, differently constituted, found that the AAT did not have jurisdiction to review the decision not to approve the nomination. The applicant was invited to appear before the Tribunal on 6 April 2023 but did not appear at the scheduled time. The Tribunal initially dismissed the application, but it was then reinstated following receipt of a request to reinstate the application which was received within 14 days as required. The Tribunal then scheduled a hearing for 25 May 2023 and received a request for the hearing to be rescheduled as the applicant was overseas and was unwell and had been seeking medical treatment. The Tribunal agreed to reschedule the hearing. On 6 June 2023, the applicant appeared before the Tribunal by teleconference from Sydney. His representative was present throughout.

7. For the following reasons, the Tribunal has concluded that this matter should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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. As the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

10. 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.

11. On the visa application, the applicant provided details of a related nomination, which is the nomination made by the nominator for the position of Café or Restaurant Manager. Under the section ENS/RSMS declarations, the applicant responded ‘Yes’ to the sentence “[h]ave declared that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection”.

12. On 16 January 2023, the Tribunal (differently constituted) found that it did not have jurisdiction to consider the application for review made by the nominator.

13. During the hearing, the Tribunal put this information to the applicant for his comments or response as it considered that the finding in respect of the application for review made by the nominator would be the reason, or a part of the reason, for affirming the decision that is under review. The Tribunal explained that this was because it meant that the nomination of the position related to his visa application for the subclass 187 visa has not been approved.

14. The Tribunal explained the consequences of the information being relied upon were that the Tribunal would find that he does not meet a criterion for the grant of the Subclass 187 visa, specifically the requirements of cl 187.233(3) which means that the application would be unsuccessful.

15. The applicant was asked if he wished to seek additional time to comment on or respond to the information.

16. The applicant said that he had worked at the restaurant until January 2020, when he had come to Sydney for a 2 week break to visit friends, but then COVID-19 lockdowns happened. He phoned George, his manager, who told him that he would let him know when he could return to work. It was uncertain and the applicant tried calling again but eventually George stopped responding to him. He loved working as a restaurant manager and had found a new employer in regional Australia to sponsor him. The applicant asked for another chance because if he was to go back to India now, others might speculate as to the reason for this and if he was to open a restaurant there, it might have a bad name.

17. The Tribunal has considered this information but, as a decision was made on 16 January 2023, this means that the decision not to approve the nomination made by Xintai International Group Pty Ltd, being the nomination related to his visa application, the only finding open to the Tribunal in respect of the issue in dispute is that cl 187.233(3) has not been met by the applicant. Given this, cl 187.233 is not met.

18. The representative requested that the applicant be allowed to apply for another visa onshore and asked the Tribunal to refer to the matter to the Minister.

19. Under s 351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision that is more favourable to an applicant if the Minister thinks it is in the public interest to do so.  The power under s 351 of the Act may only be exercised by the Minister personally. Furthermore, the power is non-compellable, in the sense that the Minister has no duty to consider whether to exercise the power when requested to do so by an applicant, or another person, or in any other circumstances. In addition, the Tribunal has no statutory obligation to consider whether a matter should be referred to the Minister for his consideration.

20. The Tribunal has considered whether to refer this case to the Minister for his intervention and has decided not to do so. It notes that the applicant is, following this decision, able to approach the Minister directly to request that he intervene in their case and may do so with the assistance of their agent.

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 one of the requirements that must be met by a person seeking the visa in the Direct Entry stream has 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.

    Wan Shum
    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.