Ali (Migration)

Ali (Migration) [2019] AATA 1950 (19 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mohammad Shokrany Hassan Ali
Mrs Aziza Fouad Kamel Mohamad
Mr Mazen Mohammad Shokrany Hassan
Mr Seifalislam Mohammad Shokrany Hassan
Miss Mariam Mohammad Shokrany Hassan
Mr Marwan Mohammad Shokrany Hassan Aly
Mr Moemen Mohammad Shokrany Hassan Aly
Miss Maise Mohammad Shokrany Hassan Aly
Mr Malek Mohammad Shokrany Hassan Ali
CASE NUMBER:  1805437
HOME AFFAIRS REFERENCE(S):           BCC2017/3171856
MEMBER:Jennifer Cripps Watts
DATE:19 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 19 February 2019 at 12:55pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent)(Class EN) – Subclass 186 Employer Nomination Scheme – Direct Entry stream – nomination not approved – request for information – no response – did not attending hearing – applicant not subject of approved nomination – no nomination review – secondary applicant cannot meet criteria – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 185.233, 186.233, 186.311, rr 1.13A, 1.13B

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) on 9 February 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 1 September 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Teacher of English to Speakers of Other Languages (ANZSCO 249311).
The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination relating to the applicant’s Subclass 186 visa application was refused and the applicant was not therefore the subject of an approved nomination.
On 1 March 2018 the applicant applied for Tribunal review, within time, and provided a copy of the delegate’s decision with their review application. On 25 October 2018, the applicant contacted the Tribunal to request a letter to take to Medicare.
On 5 December 2018, the Tribunal sent the applicant a ‘request for information’. In the letter, this was included:
‘It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.
Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.
If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide evidence about this by 20 December 2018.’
No response was received from the applicant. Nor did they request an extension of time to provide a response or give any reason why a response was not provided.
On 18 January 2019, the Tribunal sent an invitation in writing to the applicant to attend a scheduled hearing on 19 February 2019. He was invited to attend and also to provide any additional documents he would like considered. In the invitation the applicant was informed that if he is not able to attend the hearing, he needs to contact the Tribunal and provide a reason. It is also stated in the hearing invitation that the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear, or may dismiss the application without any further consideration of the application or information before it. The Tribunal received no response to the hearing invitation. The applicant provided no additional documentary evidence.
The applicant has not engaged with the Tribunal since requesting the Medicare letter in October 2018. He did not respond to the Tribunal’s request for information in December 2018 and he did not respond to the hearing invitation which requested that he provide additional documentary evidence he wished to be considered. The Tribunal is satisfied that it has communicated with the applicant by way of the email address he provided at the time he made the review application. The applicant has not informed the Tribunal of any change to his circumstances, for instance a change of email address.
The applicant did not request a postponement of the scheduled hearing. The applicant did not attend the scheduled hearing at 9:30am on 19 February 2019. No reason has been provided for the non-attendance.
The Tribunal, having considered relevant facts and matters, is satisfied that the applicant was given ample opportunity to provide information and/or documents in support of the review, he was properly invited to the scheduled hearing and that has waived his right to give oral evidence by not attending and providing no reason for the non-attendance. In the circumstances, the Tribunal has proceeded to make a decision on the evidence before it.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the subject of a nomination or whether there is a nomination review pending.
The nomination of the applicant in the position (relating to the visa application that is the subject of this review), by Australian Global Corporation Pty Ltd (AGC) was refused on 4 January 2018. AGC applied for Tribunal review on 24 January 2018 – Tribunal matter number 1801879. On 1 March 2018, the applicant applied for review relating to the nomination (and the nomination review that at that time was pending). On 9 March 2018, the Tribunal made a decision that it had no jurisdiction to review the nomination refusal decision because a valid application had not been made.
At the time the applicant applied for review of the delegate’s decision to refuse his Subclass 186 visa, there ‘was’ a pending nomination review application (relating to the position identifying the visa applicant) for AGC, as detailed above. A review application was made for AGC identifying, as the nominated person, Mohammad Shokrany Hassan Ali in the position of Teacher of English to Speakers of Other Languages. There is no pending review at the time of this decision.
Nomination of a position
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.
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.
On 5 December 2018, the Tribunal sent the applicant a ‘request for information’. In the letter, this was included:
‘It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.
Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.
If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide evidence about this by 19 December 2018.’
No response was received. No documentary evidence indicating that the applicant is the subject of a nomination or pending nomination review has been provided to the Tribunal. The applicant did not attend his hearing to give oral evidence. On the evidence before it, the Tribunal is satisfied that the applicant was provided with opportunities to provide documentary and oral evidence in support of his review application. The applicant, on the evidence, is not the subject of an approved nomination and there is no nomination review pending.
Therefore, the applicant does not meet cl.185.233.
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.
Secondary applicants
A secondary applicant must be a member of the family unit of a person who satisfies the primary criteria for the grant of a Subclass 186 visa. The Tribunal has made findings that the primary applicant does not meet cl.186.233 for the grant of the visa. The secondary applicants made a combined application with the primary applicant. However, there is no evidence before the Tribunal that the secondary applicants are members of the family unit of a person who holds a Subclass 186 visa. On this basis, the secondary applicants cannot meet criteria cl.186.311 and therefore do not meet the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Jennifer Cripps Watts
Member

ATTACHMENT A
186.233(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:
(i)subparagraph 5.19(4)(h)(i); or
(ii)subregulation 5.19(2) as in force before 1 July 2012; and
(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and
(b)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 person who will employ the applicant is the person who made the nomination.
(3)      The Minister has approved the nomination.
(4)      The nomination has not subsequently been withdrawn.
(4A)    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.
(5)      The position is still available to the applicant.
(6)      The application for the visa is made not more than 6 months after the Minister approved the nomination.

[2019] AATA 1950

19 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Remedies