AHASAN (Migration)

[2021] AATA 5568

AHASAN (Migration) [2021] AATA 5568 (5 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammed Nazmul AHASAN
Mrs Shekh Afruza HOQUE
Master Nabil AHASAN

CASE NUMBER:  1924138

HOME AFFAIRS REFERENCE(S):          BCC2018/3423535

MEMBER:Stavros Georgiadis

DATE:5 November 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 5 November 2021 at 5:19pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Fleet Manager – nomination refused– at the date of its decision the applicant is not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, r 1.13, Schedule 2, cl 186.223

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 on 10 August 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 10 September 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

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

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Fleet Manager (ANZSCO 149411).

5. The delegate refused to grant the visas because the primary applicant did not meet cl.186.223 of Schedule 2 to the Regulations as the application for a nominated occupation in relation to the applicant had not been approved and the secondary applicants were therefore, not members of the same family unit as a holder of a Subclass 186 visa: [cl.186.311.]

6. The applicant appeared before the Tribunal on 24 June 2021 by Microsoft TEAMS video conference to give evidence and present arguments. The Tribunal also received oral evidence from Mr Muhammed Alawi who is the Director of the sponsor employer, Maxpress Trading Company Pty Ltd, in the related AAT casefile 1917928 reviewing refusal of the nomination for the position. The related matters were heard together in a combined hearing. 

7. The applicants were represented in relation to the review by their registered migration agent.

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 applicants meet the criteria for the grant of a Subclass 186 visa which are set out in Schedule 2 to the Migration Regulations 1994.

   Nomination of a position

10. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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.

11. In addition, this criterion also requires that:

    ·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.

12. From the Department file, the Tribunal notes the required declaration has been made in relation to the position nominated by the employer sponsor. The Tribunal is satisfied on the documentary and oral evidence before it, that the position to which the application relates is the position nominated by Maxpress Trading Company Pty Ltd in an application for approval that seeks to meet the requirements of sub-paragraph 5.19(3), and is in relation to which the primary applicant has been identified in the nomination as the relevant Subclass 457 visa holder for the position under cl.186.223(1).   

13. On 5 November 2021 the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19 in the related AAT case-file number 1917928. At the hearing the Tribunal put to the applicant, in accordance with the procedure under s.359AA of the Act, that without an approved nomination, the applicants would not meet necessary criteria to satisfy cl.186.223 (specifically cl.187.223(2)) for the grant of the visa and that their application for the visas would, on that basis, be unsuccessful.  The Tribunal invited the primary applicant to comment on, or respond to, the information regarding a decision made by the Tribunal to refuse the nomination that would be the reason or part of the reason, for affirming the decision under review.  The Tribunal also advised the applicant that he could seek additional time to comment on, or respond to, the information and that the Tribunal would consider this if the applicant reasonably needed additional time to comment or respond to the information. 

14. The applicant did not require additional time to comment or respond. The applicant confirmed to the Tribunal that he understands and accepts that in circumstances where there is no nomination approved, the application for the visas regarding all applicants as members of the same family unit, would not be successful as approval of the nomination is one of the requirements for the grant of the 186 visas.

15. Having considered the available evidence before it discussed, the Tribunal is satisfied that the position of Fleet Manager (ANZSCO 1924138) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.186.223(2).  The Tribunal finds that the nomination of the position to which the application relates is not approved. 

16. As cl.186.223(2) is not satisfied, cl.186.223 is therefore, not met.

17. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed in respect of all applicants, including the secondary applicants, Mrs Shekh Afruza HOQUE and Master Nabil AHASAN, who are therefore, not members of the same family unit as a holder of a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa: [cl 186.311].

    DECISION

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

    Stavros Georgiadis
    Member

    
    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.