Shazia Yousuf (Migration) [2021] AATA 3233 (16 August 2021)

Last Updated: 8 September 2021

Shazia Yousuf (Migration) [2021] AATA 3233 (16 August 2021)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mrs Shazia Yousuf
Mr Mohammed Sarfaraz Hussain
Mr Shahzad Hussain Mohammed
Miss Sanayaa Safaraz
Master Sufyaan Hussain Mohammed
Master Shahzain Hussain Mohammed

CASE NUMBER: 1833213

HOME AFFAIRS REFERENCE(S): BCC2017/644984

MEMBER: Karen McNamara

DATE: 16 August 2021

PLACE OF DECISION: Sydney

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

Statement made on 16 August 2021 at 10:24am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Café or Restaurant Manager – no approved nomination – nomination review application withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

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 16 February 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 (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 Mrs Shazia Yousuf (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated occupation of Café or Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations which required Mrs Shazia Yousuf to be the subject of an approved nomination. The delegate found that the nomination lodged by FT Fowler & TB Fowler (the nominator) was refused by a delegate of the Minister for Home Affairs on 16 August 2018.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant, Mr Mohammed Sarfaraz Hussain, third named applicant Mr Shahzad Hussain Mohammed, fourth named applicant Miss Sanayaa Safaraz , fifth named applicant Master Sufyaan Hussain Mohammed and sixth named applicant Master Shahzain Hussain Mohammed, could not be granted a Subclass 187 visa, as they did not meet the secondary visa criterion (cl.187.311) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

8. The applicants applied to the Tribunal on 12 November 2018 for review of the delegate’s decision.

9. On 3 June 2021, Mrs Shazia Yousuf appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Timothy Fowler (the nominator) in the related matter for the nomination application (AAT Case file 1824942). The related matters were to be heard concurrently in a combined hearing, however Mr Fowler advised the Tribunal during the course of the nomination review hearing that he had to take his wife to the specialist and therefore would not participate in the hearing any further. The nomination matter was adjourned to be continued at a later date and time. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

10. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

ADVERSE INFORMATION – Invitation to comment

11. In accordance with s.359AA of the Act, the Tribunal put to the applicant information before the Tribunal that suggests there is adverse information known to the Department about the applicant. The Tribunal explained that under s.359AA of the Act, the Tribunal is required to invite the applicant to comment on or respond to certain information which the Tribunal considers would, subject to the applicant’s comment or response, be the reason, or part of the reason, for affirming that decision under review.

12. The Tribunal told the applicant particulars of the information that being, there are notations on the Department’s records in relation to the visa applicant and her husband ( Mr Mohammad Sarfaraz Hussain) recording there are repeat allegations that the visa applicant and her husband have been involved in payment for visa scams, phantom ENS/RSMS applications and have provided false documents to the Department.

13. The Tribunal confirmed with the applicant that the Tribunal must be satisfied under cl.187.233(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.

14. The Tribunal told the applicant that this information is relevant, because it suggests that there is adverse information known to Immigration about the applicant and a secondary applicant to her subclass 187 visa application (a person associated with the person who made the nomination) and there is no information currently before the Tribunal to suggest it is reasonable to disregard this adverse information. If the Tribunal relies on this information, it may not be satisfied the applicant meets the requirements of cl.187.233(4A) and as such the Tribunal may then find that the applicant does not meet the requirements for approval of the application and the decision under review may be affirmed.

15. The Tribunal invited the applicant to comment on this information. The applicant chose to respond orally and told Tribunal that she understood what the allegations are and that she and her husband have never been involved in any kind of visa scam. The applicant stated that she felt that these allegations are completely false, and the allegations are completely incorrect.

16. The applicants were represented in relation to the review by their legal representative and registered migration agent. The representative attended the Tribunal hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

Nomination of a position

19. 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.

20. 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.

21. On the 28 July 2021, the nominator FT Fowler and TB Fowler withdrew their nomination review application. As the nomination has been withdrawn, the applicant does not satisfy cl.187.233(3) and as such cl.187.233 is not met.

22. On 29 July 2021, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review.

23. The information related to the nominator FT Fowler and TB Fowler withdrawing their nomination review application on 28 July 2021, which the Tribunal explained was relevant to the applicant meeting cl.187.233(3) which requires the nomination to be approved. As the nomination has been refused, cl.187.233(3) is not met.

24. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 12 August 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act.

25. As at the time of this decision, the review applicants have not provided the comments within the prescribed period and no further extension has sought or granted. In these circumstances, pursuant to s.359C(2) the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

26. At the hearing of 3 June 2021, the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in her case, her visa application is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

27. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.187.233(3) of Schedule 2 to the Regulations.

28. As the first named applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

29. There is no evidence before the Tribunal to indicate that the secondary applicants meet the primary requirements for grant of the visa.

30. In relation to the second named applicant, Mr Mohammed Sarfaraz Hussain, third named applicant Mr Shahzad Hussain Mohammed, fourth named applicant Miss Sanayaa Safaraz , fifth named applicant Master Sufyaan Hussain Mohammed and sixth named applicant Master Shahzain Hussain Mohammed, the Tribunal notes that cl.187.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

31. As the applicant has not met the requirements for the grant of a Subclass 187 visa, and is not the holder of a Subclass 187 visa, it follows that the second named applicant, Mr Mohammed Sarfaraz Hussain, third named applicant Mr Shahzad Hussain Mohammed, fourth named applicant Miss Sanayaa Safaraz , fifth named applicant Master Sufyaan Hussain Mohammed and sixth named applicant Master Shahzain Hussain Mohammed, as a member of Mrs Shazia Yousuf’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second, third, fourth, fifth and sixth named applicants do not satisfy cl.187.311 of Schedule 2 to the Regulations.

32. 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

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



Karen McNamara
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.