Ahmad (Migration) [2021] AATA 5409 (29 September 2021)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Mr Naeem Ahmad
CASE NUMBER:	1823115
HOME AFFAIRS REFERENCE(S):	BCC2016/1679090 
MEMBER:	Michelle East
DATE:	29 September 2021
PLACE OF DECISION:	Perth
DECISION:	The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 29 September 2021 at 4:01pm

CATCHWORDS 
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Office Manager – subject of an approved nomination – no response to s 359A invitation – Tribunal declined indefinite delay of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 (Cth) (the Act).
2.  	The applicant applied for the visa on 9 May 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Office Manager (ANZSCO 512111).
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 the nominator was not approved.  
6.  	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
7.  	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.
8.  	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.
9.  	On 9 September 2021 the Tribunal wrote to the review applicant pursuant to s 359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review:
On 28 June 2018, the Tribunal received an application for review of the decision of
the Department of Home Affairs to refuse a nomination in respect of JACMAH ENTERPRISES PTY LTD. On 21 April 2021, the Tribunal affirmed the Department’s decision to refuse the nomination. Consequently, the decision made by the Department of Home Affairs on 21 June 2018, to refuse the nomination, stands.

The letter indicated that the above information was relevant because the Tribunal may find
that the applicant did not meet the requirements of cl.187.233, which requires there to be an
approved nomination in relation to the applicant.
10.  	The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 23 September 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
11.  	The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. 
12.  	The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support his review application.
13.  	In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision making processes.  It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where similar issues were discussed.
14.  	The Tribunal has considered whether, in the circumstances of this case, the evidence that the applicant meets the requirements of the legislation is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.
15.  	The visa application was lodged on 9 May 2016 and the delegate made its decision on 7 August 2018.  An application for review was lodged on 10 August 2018 and with its acknowledgement letter of the same date the Tribunal invited the applicant to provide material or written arguments in support of his review application.
16.  	In these circumstances and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria.  The Tribunal is not disposed to delay making a decision indefinitely.
17.  	Accordingly, the Tribunal has decided not to exercise its discretion to adjourn the review any further to allow the applicant more time.
18.  	Based on the evidence before it, the Tribunal is not satisfied at the time of its decision that there is an approved nomination. Therefore cl.187.233(3) is not met.
19.  	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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Michelle East
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.