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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Syed (Migration)

Details

AGLC: Syed (Migration) [2021] AATA 5663
Case: [2021] AATA 5663
Decision Date: 1 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the Direct Entry stream. The dispute arose because the nomination application associated with the applicant's proposed position as a Hair Salon Manager was not approved, and consequently, the applicant was deemed not to meet an essential criterion for the visa.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause mandates that the position to which the visa application relates must be the subject of an approved nomination in the Direct Entry stream, located in regional Australia, and must be the position identified in the visa application. Further requirements include that the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to the Department of Immigration, the position must remain available, and the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that the applicant's nominator, JESS & JAMES HAIR AND MAKEUP PTY LTD, had its nomination application for the Hair Salon Manager position rejected on 11 March 2019. A subsequent review of this refusal was found to be outside the AAT's jurisdiction because the company had been deregistered. This meant there was no approved nomination, nor a pending review of the refusal, that concerned the applicant. The Tribunal relied on established authority, including *Hasan v MIBP* [2016] FCCA 1049 and *Singh v MIBP* [2017] FCAFC 105, which indicate that a visa applicant cannot satisfy the relevant criteria without an approved nomination or a pending review of a nomination refusal.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 187 visa, as the essential criterion requiring an approved nomination had not been met.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCENomination of a position 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. 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. 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 Entrystreams (cls 187.223 and 187.233 respectively) that the position to which the visaapplication relates is the position in relation to which the declaration mentioned inparagraph 1114C(3)(d) of Schedule 1 was made. This requirement could not besatisfied by a later nomination of a position made by a different employer, and oncurrent authority a nomination in respect of the same position made by the sameemployer could also not be relied on to meet these Schedule 2 criteria. [see Hasan vMIBP [2016] FCCA 1049; Singh v MIBP [2017] FCAFC 105]. It follows that where anomination 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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.C. PackerMemberATTACHMENT A187.233(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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.