Ahmed (Migration)

[2019] AATA 2829

Ahmed (Migration) [2019] AATA 2829 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jameel Ahmed
Mr Abdur Rehman
Mr Abdullah Jameel
Miss Ayesha Jameel
Mrs Samina Jameel

CASE NUMBER:  1832553

HOME AFFAIRS REFERENCE(S):           BCC2017/3572871

MEMBER:Katie Malyon

DATE:26 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 February 2019 at 9:26 am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Pastry Cook – nomination not approved – nomination withdrawn by sponsoring company – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994, Schedule 2, cls 186.311, 186.223(1), condition 8107(3)(b), r 5.19(3)

CASES
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 Home Affairs on 16 October 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 29 September 2017.  At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. 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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

4. In the present case, Pakistani national Mr Jameel Ahmed (the first named applicant), is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Pastry Cook.  This stream is designed for Subclass 457 visa holders who have worked for their employer for the past 2 years, and that employer has offered them a permanent position in the same occupation.

   Background

5. Mr Ahmed applied for a Subclass 186 visa on the basis of being nominated by his employer and sponsor, the Company.  The remaining applicants are his wife and the couple’s 3 children, all of whom applied for their visas on the basis of being members of Mr Ahmed’s family unit.

6. The delegate refused to grant the visas because Mr Ahmed did not meet cl.186.223 of Schedule 2 to the Regulations as the nomination application for the position of Pastry Cook in respect of him lodged by his employer, Al-Hussain Pty Ltd T/A the Cheesecake Shop (the Company), being the nomination referred to in cl.186.223(1) of Schedule 2 to the Regulations, was refused by the Department on 28 August 2017. No review of that decision was sought by the Company.

7. On 7 February 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse their Subclass 186 visa application. The Tribunal informed the applicants that the delegate had refused the nomination application made by the Company in respect of Mr Ahmed, and no review application had been made by the Company. As a result, the position to which his Subclass 186 visa application relates could not meet criteria in cl.186.223 of Schedule 2 to the Regulations as there is no approved nomination by the Company in respect of Mr Ahmed and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105 (Singh’s case), this is a ‘once off’ process. 

8. Mr Ahmed responded to the Tribunal’s s.359A letter indicating that his sponsor asked for $22,000 to continue with the nomination and, put simply, he refused to pay. This led, 2 months later, to termination of his employment by the Company. Mr Ahmed added the new operator of the Cheesecake Shop franchise in Tuggerah is willing to sponsor him. He did not comment on the impact of the decision in Singh’s case on the Tribunal’s review of his Subclass 186 visa application.

9. The Tribunal invited the applicants to a combined hearing with its review of cancellation of Mr Ahmed’s Subclass 457 visa following termination of his employment by the Company on 26 November 2017 and his failure, within 90 days, to secure another sponsor consistent with the provision of condition 8107(3)(b) of his Subclass 457 visa.

10. Mr Ahmed appeared before the Tribunal on 25 February 2019 to give evidence and present arguments.  The Tribunal also received oral evidence from his wife, the fifth named applicant Mrs Samina Jameel.

11. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

12. Clause 186.223 of the Regulations requires that, for applicants in the Temporary Residence Transition stream, the position to which their application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and the position must be the one that was the subject of the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 of the Regulations which was required to be made as part of the Subclass 186 visa application. It is also a requirement that the Minister has approved the nomination and the nomination has not been withdrawn. The provisions of cl.186.223 of Schedule 2 to the Regulations are extracted in the Attachment to this decision.

13. Mr Ahmed told the Tribunal at the hearing that, after he refused to pay $22,000 to the Company for the purpose of being nominated, he became aware that the Company withdrew its nomination for his Subclass 186 visa.  He added that, when he refused to pay, he was told it would be his loss and the nomination would be withdrawn.  Mr Ahmed said the situation was beyond his control. 

14. The Tribunal provided Mr Ahmed with a copy of his Subclass 186 visa application as lodged with the Department by this then representative.  It noted the Company’s nomination transaction reference number TRN EGOFUNUZH6 on the first page of his Subclass 186 visa application and the declaration made by him on pages 21-22 of the application in which he declares that:

    ‘the position to which the application relates is a position nominated under regulation 5.19 … by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection.

    (Note: This application will not be valid if the details provided cannot be matched to a nomination that has been lodged with the Department of Immigration and Border Protection.)’  

    Mr Ahmed acknowledged he had made the declaration as set out in his Subclass 186 visa application. 

15. The Tribunal then referred to the decision of the Full Federal Court of Australia decision in Singh’s case that the nomination for a Subclass 186 visa is a ‘once off’ process.[1] It observed that, having reviewed the Department's file, Mr Ahmed made the requisite paragraph 1114B(3)(d) declaration in his Subclass 186 visa application: this was necessary for the purposes of making a valid application. Mr Ahmed again acknowledged that he had made the necessary declaration in his visa application. The declaration in Mr Ahmed’s Subclass 186 visa application relates to the Company's nomination application made for the position of Pastry Cook with TRN EGOFUNUZH6. Mr Ahmed told the Tribunal he was aware that the nomination had been withdrawn by the Company. As set out in the Tribunal’s letter issued pursuant to s.359A of the Act sent to the applicants on 7 February 2019, this was the nomination which was refused by the Department on 28 August 2018.

    [1]     Singh v MIBP [2017] FCAFCA 105, Mortimer J at [90].

16. On the evidence before it, the Tribunal finds that the Company’s nomination application associated with the position of Pastry Cook in respect of Mr Ahmed was not approved. Therefore, Mr Ahmed does not meet cl.186.223(2) of Schedule 2 to the Regulations.

17. It follows that the remaining applicants do not meet the requirements in cl.186.311 of Schedule 2 to the Regulations of being members of the family unit of a person who holds a Subclass 186 visa.

18. Mr Ahmed 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 either 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

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

    Katie Malyon

    
    Member

    Attachment – Extract from the Migration Regulations 1994

    Schedule 2

    Part 186 - Employer Nomination Scheme

    …
    
    

    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 (Temporary Work (Skilled)) 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