Ahmad (Migration)

[2023] AATA 3660

Ahmad (Migration) [2023] AATA 3660 (12 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sarfraz Ahmad
Mrs Hira Fatima
Master Zayan Ahmad
Ms Zahra Ahmad

CASE NUMBER:  2301721

HOME AFFAIRS REFERENCE(S):          BCC2019/6306209

MEMBER:Amanda Mendes Da Costa

DATE:12 October 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 12 October 2023 at 2.45pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Web Developer – no approved nomination – nomination review withdrawn – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; 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 on 3 February 2023 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 27 November 2019. 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 Web Developer (ANZSCO 261212).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because he was not the subject of an approved nomination.

6. On 1 September 2023 the Tribunal wrote to the applicants advising that it had considered all the material before it relating to their applications but it was unable to make a favourable decision on that information alone.

7. The Tribunal invited the applicants to give oral evidence and present arguments at a heating on 12 October 2023.

8. On 7 September 2023 the Tribunal wrote to the applicants, inviting them to comment on or respond to information which the Tribunal considered would, subject to their comments or response to be the reason or part of the reason for affirming the decisions under review.

9. That information was:

   ·On 21 November 2019, 23 DIGITAL PTY LTD (the nominator) applied to the Department to nominate the applicant for the position of Web Developer.

   ·On 28 October 2022 the nomination was withdrawn by the nominator. 

10. The Tribunal informed the applicants about the relevance of this information to the review and the consequences for them if the Tribunal relied on this information in making its decision.  The Tribunal advised the applicants that any comments or response should be made (in writing) by 21 September 2023.

11. On 20 September 2023 the applicants provided a written response to the Tribunal’s s 359A invitation in which they stated that the nominator terminated the applicant’s  employment under pressure exerted by the Department.

12. On 10 October 2023 the applicant’s authorised representative advised the Tribunal that the applicants did not wish to attend the hearing on 12 October 2023 and the Tribunal notes that the applicants did not appear at the scheduled time for the hearing on that date.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant meets the criteria in cl 186.223 of Schedule 2 to the Regulations.

    Nomination of a position

15. 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.

16. 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.

17. Based on the material in both the Departmental and Tribunal files, the Tribunal finds that the nominator applied to the Department to nominate the applicant for the position of Web Developer and on 28 October 2022 the nomination was withdrawn by the nominator.  This means that the position to which the visa application relates is not the subject of an approved nomination in the Temporary Residence Transition stream which identifies the applicant.

18. Accordingly, the Tribunal finds that the applicant does not meet the criteria in  cl 186.223.

19. 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.

20. Given its findings regarding the applicant, the Tribunal is not satisfied that the second named, third named and fourth named applicants meet the secondary requirements for the grant of Employer Nomination (Permanent) (Class EN) visas.

    DECISION

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

    Amanda Mendes Da Costa
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.