Zahid (Migration)

[2019] AATA 3778

Zahid (Migration) [2019] AATA 3778 (26 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Abdul Haleem Zahid
Mrs Misbah Ishaq
Master Danial Adam

CASE NUMBER:  1700217

HOME AFFAIRS REFERENCE(S):          BCC2016/2405402

MEMBER:Warren Stooke AM

DATE:26 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 June 2019 at 2:15pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

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 Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 July 2016. 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 (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager [ANZSCO 142111].

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination of CSV Investments Pty Ltd, being the nomination referred to in cl.187.233(1) had been refused by the delegate of the Minister for Immigration and Border Protection.

6. The applicants appeared before the Tribunal on 8 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominating sponsor in the combined hearing with Tribunal Case No.1619960, which was subject to a decision of the Tribunal on 15 May 2019.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has an approved standard business sponsor.

   Background

10. The applicant gave evidence that he commenced employment as a part-time employee in 2011, working 20 hours per week and then transferred to full-time once his Bridging Visa changed to enable full-time work.

11. The applicant stated that he has a degree from Pakistan (Actuated Electrical Engineering) and has a Diploma in Business from Australia.

12. The applicant stated that he does not have any family in Australia.

13. The applicant provided the following evidence regarding the duties he performs in the convenience store:

    a.Organises the banking;

    b.Trains other workers;

    c.Prepares shift reports;

    d.Organises the daily intakes;

    e.Provides a shift report for the EFPOS machine;

    f.Effects the orders;

    g.Checks and replenishes stock;

    h.Reviews newspapers and websites regarding events.

14. The applicant gave evidence that the owner usually relieves or supports his duties.

15. The applicant stated that he studies the market, as to what items are selling well or not and whether there is a need to change the product. He also checks the competition.

16. The applicant stated that he provides service to customers and works from 7.00am to 3.00pm depending on the roster and that he works 5 days of the week (Monday to Friday) and sometimes weekends depending on the roster. The applicant provided a copy of the roster to the Tribunal subsequent to the hearing. [Tribunal Folio – 117 to 120]

17. The applicant stated that the customers predominantly come from the surrounding offices and hotels.

    Nomination of a position

18. 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.

19. 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 r.1.13A and r.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.

20. On 17 May 2019, the Tribunal corresponded with the applicant with the following invitation to comment or respond to information:

    “INVITATION TO COMMENT ON OR RESPOND TO INFORMATION — MR ABDUL HALEEM ZAHID, MRS MISBAH ISHAQ AND MASTER DANIAL ADAM

    I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant a Regional Employer Nomination (Permanent) visas.

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

    Please note, however, that we have not made up our mind about the information. The particulars of the information are:

    ·     The application for approval of the nominated position made by CSV INVESTMENTS PTY LTD (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator's application for the nominated position has not been approved.

    This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.

    If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 31 May 2019. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

    If you cannot provide your written comments or response by 31 May 2019, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 31 May 2019 and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

    If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

    If you wish to withdraw your review application

    If your circumstances have changed and you no longer wish to continue with this review, please complete the enclosed withdrawal form and return it to us as soon as possible.

    If you have any questions, please email mrdivision(a.aat.qov.au, or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”

21. As at the time of decision, the applicant has not responded to the invitation to comment or respond to the information provided.

22. As the sponsorship nomination of CSV Investments Pty Ltd has been refused by the Department and that decision has been affirmed by the Tribunal [Case No.1619960] and there is no information before the Tribunal that the applicant is the subject of any other approved nomination or that any nomination application of the applicant is pending finalisation for any reason, the Tribunal finds that the applicant is not the subject of an approved nomination. As such, the Tribunal finds that the applicant has not met the requirements of cl.187.233(1).

23. For these reasons the requirements of cl.187.233 are not met.

24. 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.

25. As the primary applicant does not meet cl.187.233, the Tribunal finds that the secondary applicants are not members of the family unit of a person (the primary applicant) who, having satisfied the primary criteria is the holder of a subclass 187 visa. Consequently, the secondary applicants do not meet clause 187.311 for grant of a Direct Entry visa.

    DECISION

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

    Warren Stooke AM
    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.