1500397 (Migration)

[2016] AATA 4001

1500397 (Migration) [2016] AATA 4001 (28 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Salwa Begum
Mr Mohammed Amin
Miss Tashfia Laibah

CASE NUMBER:  1500397

DIBP REFERENCE(S):  BCC2014/1581756

MEMBER:Alan Duri

DATE:28 April 2016

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 28 April 2016 at 7:57am

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 on 22 December 2014 to refuse to grant the applicants Mrs Begum, her husband and child Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. Mrs Begum was born in 1977 in Bangladesh.  On 12 September 2013 the department granted Mrs Begum a Subclass 457 visas and she arrived in Australia on 6 February 2014.

3. Mrs Begum and her family applied to the Department of Immigration for the permanent visas on 27 June 2014. The employer nominator is Swissplus Pty Ltd.

4. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

5. The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

6. Mrs Begum is seeking the visa in the Direct Entry stream, to work in the nominated position of cook.  This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

7. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because on 13 November 2014 the department refused Swissplus Pty Ltd’s nomination.

8. [Swissplus Pty Ltd has sought a review with the AAT regarding the nomination refusal decision.  Both matters are before the tribunal. On 8 April 2016 the tribunal affirmed the decision to not approve Swissplus Pty Ltd’s nomination.]

9. Mrs Begum appeared before the tribunal on 14 March 2016 to give evidence and present arguments.

10. Ms Begum was represented by her registered migration agent Mr Adam Khaze.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

11. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination).  The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

12. In addition, this criterion also relevantly requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

13. Ms Begum’s employer Swissplus Pty Ltd’s nomination has not been approved. 

14. On 13 April 2016 the tribunal sent Ms Begum a letter under s.359A of the Act inviting her to comment on or respond to the information that on 8 April 2016 the tribunal affirmed the decision to not approve Swissplus Pty Ltd’ s nomination.  The due date for any response or comments was 27 April 2016. As at the close of business 27 April 2016 the tribunal has received no response or comments from Ms Begum. The tribunal proceeded to make a decision without taking any further steps to obtain Ms Begum’s views on the information.

15. Given that the nomination by Swissplus Pty Ltd has not been approved, it follows that cl.186.233 is not met.

16. Ms Begum has only sought to satisfy the criteria for a Subclass 186 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.

17. It follows that the secondary applicants do not meet he visa criteria.

    DECISION

18. The tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Alan Duri
    Member