AMIN (Migration)

[2018] AATA 3564

AMIN (Migration) [2018] AATA 3564 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Khairul Amin
Mrs Shahnaj Parvin Ratna
Mr Adyan Amin

CASE NUMBER:  1621953

HOME AFFAIRS REFERENCE(S):           BCC2016/1565383

MEMBER:Hugh Sanderson

DATE:16 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 August 2018 at 10:07am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cl 186.223(2)

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 Immigration and Border Protection on 13 December 2016 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 27 April 2016. 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 (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of accountant.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the applicant is not the subject of an approved nomination.

   Background

6. The applicant applied for the visa on the bases of his employment as an accountant for his sponsor, Ida & Associates Group Pty Ltd. The second named applicants have applied for their visas on the bases of being members of the family unit of a person (the applicant) who meets the primary criteria for the grant of the visa.

7. The nomination application of Ida & Associates Group Pty Ltd was refused by the Department on 25 October 2016. As the nomination application was refused, the delegate found that the applicant was not the subject of an approved nomination and therefore did not meet the criteria in cl.186.223(2). Accordingly the application was refused.

8. Ida & Associates Group Pty Ltd applied for a review of the decision to refuse the nomination application. After a hearing before the Tribunal, the Tribunal issued a decision on 11 May 2018 affirming the decision of the Department to refuse the nomination application.

9. On 14 May 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act noting the Department’s decision to refuse the nomination application of Ida & Associates Group Pty Ltd had been affirmed and that this would be the reason, or a part of the reason, for affirming the decision under review as the applicant was not subject of an approved nomination. The applicant responded on 27 May 2018 stating that Ida & Associates Group Pty Ltd had appealed against the decision of the Tribunal and asking to delay any decision in his application until that appeal had been finalised.

10. The applicants appeared before the Tribunal on 16 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ahmed, the applicant’s sponsor. The applicants were represented in relation to the review by their registered migration agent who did not attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant is the subject of an approved nomination.

13. 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 nomination must have been approved (cl.186.223(2)).

14. The nomination application of the applicant’s sponsor, Ida & Associates Group Pty Ltd, was refused by the Department and that decision has now been affirmed by the Tribunal on review. Ida & Associates Group Pty Ltd has filed an appeal against the decision of the Tribunal with the Federal Circuit Court. That appeal is still pending. No details have been provided to the Tribunal of the basis on which jurisdictional error has been claimed to have been made by the Tribunal in affirming the decision to refuse the nomination application.

15. The Tribunal has considered the application of the applicant to delay any decision in the current application pending the outcome of the appeal by Ida & Associates Group Pty Ltd. The Tribunal does not accept that it is appropriate to wait for the outcome of the appeal lodged by Ida & Associates Group Pty Ltd. No information has been provided as to the basis on which it is claimed that jurisdictional error was made in the decision to affirm the decision to refuse the nomination application. The outcome of the appeal by Ida & Associates Group Pty Ltd is speculative and, due to the overwhelming workload of the Federal Circuit Court, there is likely to be considerable delay in the finalisation of that application. Accordingly, the Tribunal does not accept that it is appropriate to delay making a decision in the current application until the finalisation of the appeal by Ida & Associates Group Pty Ltd.

16. At the time of this decision the applicant is not the subject of an approved nomination. Therefore, cl.186.223(2) is not met.

17. The applicant 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 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.

18. The only basis of the applications of the second named applicants is that they are members of the family unit of the person who meets the primary criteria. As the first named applicant does not meet the primary criteria, the decision to refuse the applications of the second named applicants must also be affirmed.

    DECISION

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

    Hugh Sanderson
    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.