Ahmed (Migration)

[2019] AATA 5715

Ahmed (Migration) [2019] AATA 5715 (19 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Faez Ahmed
Mrs Zebika Hossain

CASE NUMBER:  1834433

HOME AFFAIRS REFERENCE(S):          BCC2018/148786

MEMBER:Karen McNamara

DATE:19 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 19 September 2019 at 12:09pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Real Estate Representative – no approved nomination – nominator deregistered – decision under review affirmed      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

CASES

Hasran v MIAC [2010] FCAFC 40     

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 6 November 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 10 January 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 (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 Mr Faez Ahmed (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Real Estate Representative (ANZSCO 612115).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because on 2 October 2018, the nomination application lodged by the nominator, SHKI Pty Ltd, was refused by a delegate of the Minister of Home Affairs.

6. The applicants applied to the Tribunal on 23 November 2018 for review of the delegate’s decision.

7. The applicants provided a copy of the delegate’s decision record to the Tribunal.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl.186.223.

    Nomination of a position

11. 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.

12. 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); 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.

13. On the 2 October 2018, the Department refused the approval of the nomination made by SHKI Pty Ltd, in respect of the applicant. As the nomination has been refused, regulation 186.223(2) is not met.

14. On 3 September 2019, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant 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. The information related to there is no evidence before the Tribunal to support that the nominator is trading. Information from the Australian Securities and Investments Commission (ASIC) shows that SHKI Pty Ltd was deregistered on 26 May 2019. There is no evidence before the Tribunal that the company’s registration has been reinstated with ASIC. The Tribunal explained that this was relevant to the applicant meeting cl.186.223(4) which requires that the position is still available to the applicant and further under cl.186.223(2) which requires the nomination to be approved.

15. The invitation to comment 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         17 September 2019, 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.

16. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

17. Having considered the evidence before it, the Tribunal finds that the applicant does not satisfy cl 186.223(2) and cl 186.223(4).

18. Therefore, cl.186.223 is not met.

19. As the first named applicant is found not to have met the prescribed criteria for an Employer Nomination Scheme (subclass 186) visa under the Temporary Residence Transition Stream, the second named applicant Mrs Zebika Hossain as a member of his family unit therefore is also unable to satisfy the criteria for this visa class and does not meet cl.186.311.

20. As such, the applicants do not meet an essential criterion for the grant of a subclass 186 visa.

21. The applicants have 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.

    DECISION

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

    Karen McNamara
    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.