Zahoor (Migration)

[2020] AATA 759

Zahoor (Migration) [2020] AATA 759 (16 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Samar Zahoor

CASE NUMBER:  1926057

HOME AFFAIRS REFERENCE(S):          BCC2017/3549207

MEMBER:Karen Synon

DATE:16 March 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 16 March 2020 at 9:16am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) – subject of an approved nomination – nomination application refused – position no longer available ­­­­– decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 (the Act).

2. The applicant applied for the visa on 28 September 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 Direct Entry stream, to work in the nominated position of ‘Retail Manager (General)’.

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 lodged by ‘COLY FUELS PTY LTD ATF COLY FUELS UNIT TRUST’ was refused on 2 August 2019.

6. The applicant applied for review of the primary decision on 17 September 2019 and provided a copy of the department’s decision.

7. On 11 February 2020 the Tribunal wrote to the applicant to invite him to a hearing on 12 March 2020 to present evidence and arguments.

8. On 11 March 2020 the applicant sought a postponement of the hearing on the basis of ill health and provided a medical certificate stating he would be unavailable to present himself for “work/study/court hearing from 11/03/2020 to 12/03/2020 inclusive”.

9. The postponement request was granted and the hearing was rescheduled to 16 March 2020.

10. The applicant appeared before the Tribunal on 16 March 2020 to give evidence and present arguments.

11. The applicant was represented in relation to the review by his registered migration agent. The representative was running late and did not arrive before the conclusion of the hearing despite the Tribunal delaying the commencement of the short hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is cl.187.223.

    Nomination of a position

14. 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.

15. 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.

16. During the hearing the Tribunal explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to the applicant.  As recorded in the primary decision, a copy of which was provided to the Tribunal, this position nomination is no longer available to him as the nomination lodged by ‘COLY FUELS PTY LTD ATF COLY FUELS UNIT TRUST’ was refused on 2 August 2019.

17. Invited to make any submissions the applicant said he agreed the nomination was rejected and because of that his visa was rejected.  He had already worked there for 2 years so met the 2 year working condition.  The applicant is now completing the Job Ready program.

18. The applicant agreed that the nomination for the occupation of ‘Retail Manager (General)’ with COLY FUELS PTY LTD ATF COLY FUELS UNIT TRUST’ was no longer available to him.

19. Based on the information before it in the primary decision and the applicant’s evidence the Tribunal finds that the applicant is not the subject of an approved nomination.

20. Therefore, cl.187.233(3) is not met.

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 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

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

    Karen Synon
    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.