Amin (Migration)

[2022] AATA 1598

Amin (Migration) [2022] AATA 1598 (28 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Usama Amin

REPRESENTATIVE:  Mr Syed Ahmad Azeem (MARN: 1801138)

CASE NUMBER:  1820796

HOME AFFAIRS REFERENCE(S):          BCC2017/4839483

MEMBER:Michelle East

DATE:28 February 2022

PLACE OF DECISION:  Perth

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

Statement made on 28 February 2022 at 12:43pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – Pharmacy Technician – nomination refused– at the date of its decision the applicant is not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 1.13, Schedule 2, cl 186.233

CASES
Hasran v MIAC [2010] FCAFC 40

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Minister for Immigration and Citizenship v Li [2013] HCA18
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 27 June 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 December 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Pharmacy Technician.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.234(2)(b) of Schedule 2 to the Regulations because they were not satisfied that the applicant had been employed in the occupation for at least 3 years on a full-time basis at the level of skill required for the occupation.

6. The applicant was represented in relation to the review.

7. 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

8. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

9. 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 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.

10. On 11 February 2022 the Tribunal wrote to the applicant with the following particulars of information pursuant to s 359A of the Act:

    On 1 October 2018, the Tribunal received an application for review of the decision of the Department of Home Affairs to refuse a nomination in respect of H.C KHOO & J.C RANALLO.  On 19 July 2021, the Tribunal accepted H.C KHOO & J.C RANALLO’s withdrawal of their review in relation to the Department’s decision to refuse the nomination.  Consequently, the decision made by the Department of Home Affairs on 11 September 2018, to refuse the nomination, stands.

    This information is relevant to the review because in deciding whether you satisfy the requirements of clause 186.223(2) of Schedule 2 to the Regulations, that clause requires that the Minister has approved the nomination (being the nomination referred to in paragraph 186.223(1).

    If the Tribunal relies on this information in making its decision, it will make a finding that there is no approved nomination in which you are the nominee for the purpose of cl.186.223.  This may lead the Tribunal to find that that criterion is not met.  This is an impediment to the visa being granted by the Department of Home Affairs for you.

11. The Tribunal is satisfied that the letter of 11 February 2022 was sent to the email address provided by the applicant for the purposes of the review.

12. The applicant lodged his visa application on 16 December 2017 and the delegate made its decision on 27 June 2018.  After the application for review was lodged with the Tribunal, it acknowledged the application on 18 July 2018 and noted that the applicant should provide the Tribunal with any material or written arguments as soon as possible.

13. A review of the Tribunal records indicates that the applicant has not provided the information within the prescribed period or requested an extension of time to do so. In these circumstance, s 359C applies and pursuant to s 360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s 363A of the Act is that if the applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40.

14. The Tribunal has considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support his review application.

15. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA regarding the reasonableness of any request for an adjournment.

16. The Tribunal has considered whether, in the circumstances of this case, the evidence that the applicant meets the requirements of the legislation is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

17. In these circumstances and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria.  The Tribunal is not disposed to delay making a decision indefinitely.

18. Accordingly, the Tribunal has decided not to exercise its discretion to adjourn the review any further to allow the applicant more time.

19. Based on the evidence before it, the Tribunal is satisfied that at the date of its decision the applicant is not the subject of an approved nomination.  The Tribunal finds that the applicant does not satisfy cl.186.233(3).

20. Therefore, cl 186.233 is not met.

21. 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

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

    Michelle East
    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.