Alhaddad (Migration)

[2020] AATA 5197

Alhaddad (Migration) [2020] AATA 5197 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rami Bahjat Issa Alhaddad

CASE NUMBER:  1803860

HOME AFFAIRS REFERENCE(S):          BCC2017/929846

MEMBER:Mark Bishop

DATE:18 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 18 November 2020 at 12:54pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – subject of an approved nomination – unique or exceptional circumstances – 10-year residence in Australia – employment ended through no fault of the applicant – engaged to be married to an Australian permanent resident – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), 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 30 January 2018 to refuse to grant the applicant 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 9 March 2017. 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 applicant is seeking the visa in the Temporary Residence Transition stream to work in a nominated position.

5. The applicant provided a copy of the decision record to the Tribunal. The applicant was assisted by his Migration Agent (MA). The Tribunal received evidence from a Mr Butros Dahdal a long term friend of the applicant and Ms Wareena Alduski fiancé of the applicant.

6. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because on 14 December 2017 the nomination lodged by KATE KATISAT being the nomination referred to in paragraph 186.233(1) was refused by a delegate of the Minister for Immigration and Border Protection.

7. In this case the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the review applicant to provide further information to the Tribunal.

8. Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

9. 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

10. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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.

12. On 20 October 2020 the Tribunal wrote to the applicant in the following terms:

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    You applied for the Subclass 186 (Employer Nomination Scheme) visa based on a nomination of a position made by the nominator KATE KATISAT. The nomination to which that position relates was refused by the Department of Home Affairs (‘the Department’) on 5 December 2017.

    ·It is a requirement for the grant of a Subclass 186 visa that the nomination has been approved and that the nomination has not subsequently been withdrawn (cl 186.233).

    ·The Tribunal’s records indicate that the nominator lodged an application for review of the Department’s decision to refuse the nomination with the Tribunal which the Tribunal affirmed on 17 July 2020.

    ·This means that the Department’s decision refusing the nomination in relation to you stands. Therefore, the relevant nomination for the position has not been approved.

    This information is relevant to the review because one of the requirements for the grant of the Subclass 186 visa is that the relevant nomination, that is the nomination you relied on when lodging your visa application, has been approved, and the information suggests that the nomination has not been approved and/or that it has been withdrawn.

    If we accept and rely on this information in making our decision, we may find that the relevant nomination has not been approved or has been withdrawn and therefore that you are not the subject of an approved nomination and do not meet the requirements of cl 186.233. This would be the reason or part of the reason for the Tribunal to affirm the decision under review, that is, the decision made by the Department to refuse you the grant of a Subclass 186 visa.

    You are invited to give comments on or respond to the above information in writing. Your comments or response should be received by 3 November 2020. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

13. On 3 November 2020 the applicant provided the following information to the Tribunal:

    ·Written submission from the MA for the applicant that advised “the Tribunal would have no option but to affirm the Department’s decision in this matter”

    ·Information relating to his personal circumstances, his fiancé, a statement from his fiancé and their future marriage plans;

14. In evidence to the Tribunal the applicant advised he could not provide evidence of a current nomination.

15. On 5 December 2017 the nomination lodged by KATE KATISAT being the nomination referred to in paragraph 186.233(1) was refused by a delegate of the Minister for Immigration and Border Protection. This decision was affirmed by the Tribunal as outlined above.

16. There is no evidence before the Tribunal that the relevant nomination has been approved. The evidence before the Tribunal is that the prior nomination has been withdrawn and therefore that the applicant is not the subject of an approved nomination and does not meet the requirements of cl 186.233.

17. Therefore, cl.186.233 is not met.

    Request for Ministerial Intervention

18. The MA requested the Tribunal refer the matter to the Minister for Intervention.

    Referral to the Minister by the Tribunal

19. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of his or her public interest powers,[1] and nor is there any statutory power for the Tribunal to make a binding recommendation in this regard.

    [1] Mohammed v MIBP [2017] FCCA 2356 at [29].

20. The power under s351(1) may only be exercised by the Minister personally.[2] Further, the Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person (including the Tribunal), or in any other circumstances.

    [2] S351(3)

21. A review Tribunal may refer a case to the Department if the Member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of the Ministerial Intervention guidelines. The Department will assess the circumstances of the case and may refer the case to me where it meets my guidelines for referral. If the Department assesses that the case does not meet my guidelines for referral, the Department will finalise the case according to these guidelines.

    President’s Direction

22. Members should have regard to the Ministerial Guidelines when considering whether or not a case should be drawn to the attention of the Minister. When a member considers that a case should be brought to the Minister’s attention, the member may refer the case to the Department. The Member’s views will be brought to the Minister’s attention by the Department under the guidelines.

23. The Member may refer a case to the Department on the basis that the Member considers that there are facts or circumstances warranting further investigation by the Department before referral to the Minister.

24. The circumstances which the member considers warrant the case being brought to the Minister’s attention should be set out in the Member’s statement of decision and reasons and may also be set out in the referral letter to the Department.

25. If an applicant requests a Member to refer a case to the Department and the member decides not to do so, the Member should refer to the request in the statement of decision and reasons and note that the applicant may make a request directly to the Minister.

26. The Minister’s guidelines describe the types of cases that might be referred for the Minister’s consideration. The Minister has described the types of unique or exceptional circumstances in which a case might be referred for the Minister’s consideration. The Minister’s guidelines indicate that certain cases that do not meet the guidelines for referral are inappropriate to consider. The facts of this case fall within the “inappropriate to consider” guidelines.

27. The Tribunal has reviewed the list and types of exceptional circumstances that are set out in the Ministerial guidelines. The applicant has made the Tribunal aware of any circumstances that might be characterised as follows:

    ·Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.

    ·Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in your case.

    ·You cannot be returned to your country/countries of citizenship or usual residence due to circumstances outside your control

    Decision re ministerial Intervention

28. The applicant is engaged to be married to an Australian permanent resident and is planning for the wedding to take place in April or May 2021. The applicant gave evidence that the marriage had been put off to that date because of complications arising from Covid-19 and the desire of both marriage parties to have family (in particular, parents) attend the wedding for social and cultural reasons. Family of both parties live in Jordan and Iraq and have been unable to enter Australia since March 2020.

29. Two witnesses gave evidence to the Tribunal. Separately they advised the Tribunal the applicant had resided in Australia for 10 years, had adhered to all visa conditions, had been gainfully employed, had made application for a subclass 186 visa after his previous employment as a café manager ceased due to the café being sold by the owner, his employment ceasing in that enterprise, his return to Sydney, his meeting and eventual engagement to be married and the desire of the marriage partners to marry in the presence of their family, the inability of family to fly to Australia from the middle east because of government restrictions on entry into Australia and the hope of the marriage partners to marry in April/May 2021 in the presence of family and their local community in Sydney.

30. In a written submission to the Tribunal the applicant sought Ministerial Intervention (MI). He submitted the following circumstances concerning his 10 year residence in Australia amounted to “unique or exceptional circumstances”

    ·His work on a Subclass 187 visa from 20 December 2014 t0 24 March 2017 and continuing on a bridging visa until the sale of the café business in September 2018;

    ·The decision in relation to his subclass 186 visa application being outside his control; and

    ·The circumstances of the business sale that has taken place during this Tribunal process also being outside his control

31. The Tribunal has considered all the above information. The applicant is in a difficult situation. That situation is caused by a range of circumstances outside the control of the applicant. He has been resident in Australia for over a decade. In that time the evidence is that he has become acculturated to the Australian way of life and within the wider Australian community. His employment ended through no fault of his own. His visa sponsor Kate Katisat sold her café. He is now engaged to be married to an Australian permanent resident. Quite naturally he wishes to embark on the next phase of his life with his soon to be wife. Quite naturally both he and his fiancé wish the marriage ceremony to occur within his local community and in the presence of parents and other family members.  The inability of family members to come to Australia in the current circumstances of Covid-19 is completely outside the control of the applicant and is a direct (and arguably necessary) consequence of decisions made by the Australian government for health reasons. The sale of the restaurant previously owned by Kate Katisat was also outside the control of the applicant.

32. Most, if not all of the matters referred to above are not remarkable when viewed in isolation. There is nothing remarkable or even atypical about a young man shifting to another country, becoming acculturated to that country in a lengthy period of residence, seeking and gaining employment, obtaining a 457 visa, seeking and gaining a nomination as part of the process of applying for a 186 visa, being an employee when an enterprise is sold, seeking alternate employment, meeting a young woman, becoming engaged to her and seeking to get married in the presence of family and friends in the age of Covid-19. The Tribunal does not regard any of these circumstances, viewed on their own as warranting the characterisation of unique or exceptional. It is the continuum of these matters over time and their impact in terms of harmful consequences on the future life of a young couple who have engaged in lawful activity to seek residence in a new country that warrants the characterisation of unique or exceptional. It is the first case of this type that has been bough to the attention of the Tribunal.

33. The Tribunal is satisfied a strict application of the relevant legislation would result in an unfair or unreasonable outcome.

34. There is significant merit in the approach and submissions provided by the applicant and his MA.

35. The Tribunal is satisfied that the set of circumstances as outlined above are both unique and exceptional. The Tribunal supports the Request for Ministerial Intervention.

36. The Tribunal notes that at all times the applicant has the right to make an approach to the Minister for intervention.

    CONCLUDING PARAGRAPH (ALL ISSUES)

37. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

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

    Mark Bishop

    
    

    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.