Syed (Migration)

[2021] AATA 5663

Syed (Migration) [2021] AATA 5663 (1 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Abu Sayeed Syed
Mrs Fatima Zeenat
Master Abuzar Syed
Ms Faseeha Rashida Syeda

CASE NUMBER:  1911156

HOME AFFAIRS REFERENCE(S):          BCC2018/961500

MEMBER:C. Packer

DATE:1 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 01 June 2021 at 4:18pm

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Hair salon manager– nomination application associated with the position was not approved – not the subject of an approved nomination–decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

CASES
Hasan v Minister for Border Protection [2016] FCCA 1049
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105

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 (Cth) (the Act).

2. The applicants applied for the visas on 28 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). 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Hair salon manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because on 11 March 2019, the nomination lodged by JESS & JAMES HAIR AND MAKEUP PTY LTD, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister.

6. The applicant appeared by phone before the Tribunal on 1 June 2021 to give evidence and present arguments.

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 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 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 Tribunal’s letter of 5 May 2021 invited the applicant to comment or respond to information, and stated in part:

    The particulars of the information are:

    ·     On 22 February 2018 JESS & JAMES HAIR AND MAKEUP PTY LTD (your nominator) made an application listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa). The position was said to be Hair Salon Manager and nominated you. However, on 11 March 2019 a delegate of the Minister rejected the application.

    ·     The nominator sought a review of that decision, but the AAT found that it did not have jurisdiction because the company had been deregistered.

    ·     This means that there is no approved nomination, and no review of that nomination refusal decision pending, that concerns you..

    This information is relevant to the review because without an approved nomination,
    you will not meet an essential criterion for the grant of the visa.

    It is a requirement for both the Temporary Residence Transition and Direct Entry
    streams (cls 187.223 and 187.233 respectively) that the position to which the visa
    application relates is the position in relation to which the declaration mentioned in
    paragraph 1114C(3)(d) of Schedule 1 was made. This requirement could not be
    satisfied by a later nomination of a position made by a different employer, and on
    current authority a nomination in respect of the same position made by the same
    employer could also not be relied on to meet these Schedule 2 criteria. [see Hasan v
    MIBP [2016] FCCA 1049; Singh v MIBP [2017] FCAFC 105]. It follows that where a
    nomination is refused, the visa applicant will not meet cl.187.233 unless there is also a review of that decision pending.

    If we rely on this information in making our decision, the decision under review must be affirmed.

11. The applicant’s response on 18 May 2021 asked for further time to respond: ‘I need a time extension because my employer had a baby born last week and he is unable to provide me with the relevant documents relating to my case.’

12. On 19 May 2021 the Tribunal provided further time to 28 May 2021. The applicant provided further information, including a statement that explained his circumstances and stated in part:

    … That’s the reason he wants to hire someone who can at least stick to his employment for few years. How ever due to staff shortage and business already running very slow due to Drought followed by bushfire and then covid19 which was very unfortunate for the business as Hair Salons were one of the hardest hit business in this Pandemic forced Mr. Mubasheer to close his business. However, he is hopeful that once the pendamic finishes he can plan to open his business again.

13. At the hearing the Tribunal discussed the foregoing circumstances with the applicant. He responded that when he applied the position had been genuine. He stated that many businesses had been affected because of the covid epidemic, and how the nominator has an intention to offer him work as soon as possible. He wanted another chance as he’d done nothing wrong.

14. The witness Mr Mubasheer Hussain Syed spoke of the difficulties he had with the business and staffing issues and how sorry he was that he had not been able to successfully nominate the applicant.

15. The Tribunal advised that this review could not succeed, and that he should consult with a migration agent or the Department to see if there were any other applications that could be made in Australia.

16. In sum, the Tribunal finds that the nomination has not been approved. There is no approved nomination, and no review of that nomination refusal decision pending, that concerns the visa applicant. Therefore, cl.187.233 is not met.

17. 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

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

    C. Packer
    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.