Ahmad (Migration)

[2019] AATA 2982

Ahmad (Migration) [2019] AATA 2982 (21 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hafiz Ali Ahmad

CASE NUMBER:  1714372

HOME AFFAIRS REFERENCE(S):          BCC2016/4408442

MEMBER:Katie Malyon

DATE:21 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 21 May 2019 at 12:20 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – no response to s 359A invitation – not entitled to appear before the Tribunal – Temporary Residence Transition stream – Customer Service Manager – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
Hasran v MIAC [2010] FCAFC 40
Singh v MIBP [2017] FCAFC 105

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 and Border Protection on 29 June 2017 to refuse to grant the applicant, Mr Hafiz Ali Ahmad, an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 December 2016.  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 (the Regulations).  Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

   Background

4. In the present case, Mr Ahmad is seeking the visa in Temporary Residence Transition stream, to continue to work in the nominated position of Customer Service Manager ANZSCO 149212 with his employer Gani Traders Pty Ltd (the Company).

5. The delegate refused to grant the visa on the basis that Mr Ahmad did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination application made by the Company was refused by the Department on 17 May 2017. As a result, the Department refused Mr Ahmad’s Subclass 186 visa application.

6. The Company sought review of the delegate’s refusal of its nomination application (Matter No. 1711988).  However, on 4 February 2019, the Tribunal made a decision that it did not have jurisdiction to review the delegate’s decision refusing the Company’s nomination.

7. The Tribunal initially invited Mr Ahmad, on 11 February 2019, to provide evidence that the position identified in his visa application is the subject of an approved nomination, or a pending application for review of a decision to refuse the nomination.  On 13 February 2019, Mr Ahmad provided documentary evidence of his father’s critical health condition and requested further time to provide a response to the letter.  The Tribunal granted his request and informed him that a response was now to be received by 25 March 2019.  On 25 March 2019, Mr Ahmad’s representative wrote to the Tribunal stating that the Company had approached ASIC to reinstate its registration following its deregistration due to non-payment of the annual review fee.  Evidence of the Company’s request by email to ASIC was provided to the Tribunal.

8. On 2 April 2019, the Tribunal wrote to Mr Ahmad pursuant to s.359A of the Act inviting him to comment on, or respond to, information which would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse his Subclass 186 visa application. The Tribunal informed Mr Ahmad that it had made a decision in Matter No. 1711988 that it did not have jurisdiction to review the delegate’s decision to refuse the Company’s nomination application and so the Company’s nomination application for the nominated position has not been approved. As a result, the position to which his Subclass 186 visa application relates cannot meet the criteria in cl.186.223 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

9. In its s.359A letter, the Tribunal requested Mr Ahmad to provide any comments or response to the information in the Tribunal’s letter on or before 16 April 2019. The Tribunal’s letter to Mr Ahmad was sent to the email address listed in the application for review form lodged to the Tribunal. The Tribunal notes that it has previously received correspondence from that email address. No response to the Tribunal’s s.359A letter has been received from Mr Ahmad.

10. As Mr Ahmad has not provided any response to the Tribunal’s s.359A letter, s.359C of the Act applies and, pursuant to s.360(3) of the Act, he 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40

11. 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

12. Clause 186.223 of Schedule 2 to the Regulations, 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 same one that was the subject of the declaration made by the visa applicant that is required to be made as part of the Subclass 186 visa application.

13. 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 r.1.13A and r.1.13B of the Regulations), 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.

14. The Company’s nomination was refused by the Department and, subsequently, the Tribunal made a decision that it did not have jurisdiction to review the Department’s decision. Mr Ahmad has failed to provide any response to, or comment on, this information when requested to do so by the Tribunal in its s.359A letter. In the circumstances, as the nomination application made by the Company for the position of Customer Service Manager to which Mr Ahmad’s Subclass 186 visa application relates has not been approved, it follows that he does not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations. Therefore, cl.186.223 of Schedule 2 to the Regulations is not met.

15. Mr Ahmad 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 stream.  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

    DECISION

16. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from Part 186 of Schedule 2 to the Migration
    Regulations 1994

    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.

    oOOo