ZEB (Migration)

[2023] AATA 3032

ZEB (Migration) [2023] AATA 3032 (6 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Azhar Zeb
Mrs Azeema Atta
Miss Aroush Azhar

REPRESENTATIVE:  Mr Abdul Hasib Khan (MARN: 0427601)

CASE NUMBER:  1923120

HOME AFFAIRS REFERENCE(S):          BCC2018/698011

MEMBER:Susan Reece Jones

DATE:6 August 2023

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 06 August 2023 at 3:36pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19; 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 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 11 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 Fleet Manager (ANZSCO 149411).

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 nominator’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations because the application for approval did not identify a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

6. The applicant appeared before the Tribunal on 20 February 2023, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Murtaza Ameer, the nominator’s director. 

7. The applicants were represented in relation to the review.

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 relevant nomination has been approved as required by cl.187.233.

   Nomination of a position

10. 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. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. 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.

    Nominator proceedings

12. The delegate’s decision (a copy of which was provided with the nominator’s review application) identified that the application of the nomination by SBZ Group Pty Ltd was refused by the Department on 1 July 2019.

13. On 26 July 2022, the Tribunal wrote via email to the nominator’s representative Mr Abdul Hasib Khan of AHK Australian Migration Solution, pursuant to s.359(2) of the Act to invite the nominator to provide up to date and current information demonstrating that the applicant met all of the applicable r.5.19(4) criteria (not merely the subparagraph that the delegate had found was not met).

14. The nominator was requested to provide the requested information and was advised that if it failed to do so (or failed to ask for an extension of time to do so), by the date provided by the Tribunal, the nominator would lose its entitlement to have someone attend a hearing to present evidence and arguments on its behalf, and the Tribunal might proceed to make its decision without requesting further information.

15. The nominator responded that because of the COVID-19 restrictions and the year ending on 30 June 2022, “the Accountant is extremely busy to prepare and lodge Financial Statement for FY 2022”. The nominator requested an extension to 30 August 2022. On 1 August 2022, the Tribunal provided the nominator with an extension of time until 30 August 2022.

16. On 24 August 2022, the nominator provided the Tribunal with selected documents in support of its application.

17. On 27 January 2023, the Tribunal wrote to the nominator requesting that in order to assist the Tribunal with this review, the nominator provide further details in support of the application by 10 February 2023.

18. On 6 February 2023, the nominator provided the Tribunal with additional documents in support of its case.  

19. The nominator appeared before the Tribunal for a hearing on 20 February 2023, to give evidence and present arguments. The Tribunal received oral evidence from Mr Murtaza Ameer, the nominator’s director and also the applicant, Mr Azhar Zeb.  The applicant was represented in relation to the review.

20. Following the hearing, the nominator provided the Tribunal with selected additional material as requested. The nominator also requested an extension of time to 27 March 2023, in order to provide further submissions in support of its case.

21. On 27 March 2023, the Tribunal wrote the nominator again and requested additional documents by 4 April 2023. The nominator did not provide a response to the Tribunal’s request for further information.

22. On 26 April 2023, the Tribunal invited the nominator to attend a second hearing on 18 May 2023. The nominator appeared before the Tribunal on 18 May 2023, to give evidence and present arguments. The Tribunal received oral evidence from Mr Murtaza Ameer, the nominator’s director. The nominator’s representative also attended the second hearing.

23. On 26 May 2023, the nominator provided selected documentation as requested by the Tribunal, however the nominator again failed to provide specific documentation in support of its case and as requested repeatedly by the Tribunal.

24. Given the above, the Tribunal found that the nominator failed to provide the requested information. Accordingly, the Tribunal proceeded to make a decision on the evidence before it and on 20 June 2023, the Tribunal affirmed the decision under review to refuse the nomination.

    Applicant proceedings

25. On 22 June 2023, the Tribunal wrote to the applicant’s representative pursuant to s359(A) of the Migration Act 1994 (the Act), inviting the applicant to comment on or respond to certain information. The Tribunal in inviting the applicant to comment on or respond to certain information which the Tribunal may consider, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review, namely that as the Tribunal affirmed the Department’s decision to refuse the nomination. The Department decision to refuse the nomination remains in force and the nominator’s application to have that decision changed was unsuccessful and this means that the nomination has not been approved as required under cl.187.233(3) of Schedule 2 to the Migration Regulations 1994.

26. The applicant was also advised that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the applicant’s visa application is the subject of an approved nomination.

27. The Tribunal received no response or further information to its written request of 22 June 2023. Given the above, the Tribunal finds that the applicant lost its entitlement to a hearing due to the failure to provide the requested information (or seek an extension of time to do so) by 6 July 2023, the due date. Accordingly, the Tribunal considers it reasonable to now proceed to make a decision on the evidence before it.

28. Therefore, given the finding that cl. 187.233 is not met, the appropriate course is to affirm the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

29. 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 in relation to applicant, Mr Zeb.

30. In relation to the second and third visa applicants (being the applicant’s wife and daughter), the Tribunal must affirm the decision not to grant the second and third visa named applicants in subclass 187 visas, as they do not meet the secondary visa criteria to members of the family unit of a person who holds a subclass 187 visa, and there is no evidence that they meet the primary visa criteria in their own right.

    DECISION

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

    Susan Reece Jones
    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.