AQIL (Migration)

[2019] AATA 3403

AQIL (Migration) [2019] AATA 3403 (12 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aziz Inayat Aqil

CASE NUMBER:  1908347

HOME AFFAIRS REFERENCE(S):          BCC2018/1132248

MEMBER:Katie Malyon

DATE:12 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 12 July 2019 at 4:46 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Registered Nurse (Community Health) – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

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 15 March 2019 to refuse to grant the applicant, Pakistani national Mr Aziz Inayat Aqil, an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Aqil applied for the visa on 9 March 2018.  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).  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, 64 year old Mr Aqil is seeking the visa in the Direct Entry stream to work in the nominated position of Registered Nurse (Community Health) ANZSCO 254414.

5. The delegate refused to grant the visa on the basis that Mr Aqil did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination application made by his prospective employer was refused by the Department. A copy of the delegate’s decision was provided to the Tribunal.

   Background

6. Mr Aqil was nominated to fill the position of Registered Nurse (Community Health) with the Trustee for Crown Medical Admin Unit Trust (the Trustee).  However, the Trustee’s nomination was refused by the Department on 25 January 2019.  As a result, the Department refused Mr Aqil’s Subclass 186 visa application.  The Trustee did not seek review of the delegate’s refusal of its nomination application.

7. On 9 April 2019, the Tribunal wrote to Mr Aqil via his representative appointed for the purposes of the current review application.  In its letter, the Tribunal noted it is a requirement for grant of a Subclass 186 visa that the nomination for the position identified in his visa application has been approved.  The Tribunal invited Mr Aqil to provide information in relation to whether the position identified in his visa application is the subject of an approved nomination, or whether there is a pending application for review of a decision to review the nomination.  The Tribunal requested he provide any evidence in response to its letter on or before 23 April 2019.  No information was provided to the Tribunal in response to its letter.  The matter was set down for hearing. 

   Documentation lodged prior to the hearing

8. Prior to the hearing, the representative provided the Tribunal with a statement from Mr Aqil. Some comments in the statement refer to Mr Aqil’s Subclass 457 visa with the Sir Moses Montefiore Jewish Home in Randwick as well as cancellation of that visa under s.116 of the Act and, accordingly, for the purposes of this review are irrelevant. In relation to his Subclass 186 visa application Mr Aqil states that, after doing continuous night shifts as the holder of a Subclass 457 visa for over 5 years (with the Sir Moses Montefiore Jewish Home), his health started to deteriorate and so he started looking for a new job. It was in this context that he came across ARVS, a migration agent and recruiter based in North Sydney. As a result, he:

   ·applied for and was interviewed by an ARVS agent who assured him of a job and a Subclass 186 visa;

   ·paid ARVS fees totalling $35,000 and attached copies of ARVS’s invoices; and,

   ·applied for a Subclass 186 visa on 9 March 2018.

   He added that he was guided in relation to the Subclass 186 visa application by the ARVS agent.  Departmental records confirm that Mr Do An of Australian RSMS 457 Visa Service Pty Ltd lodged Mr Aqil’s Subclass 186 visa application with the Department.

   Hearing

9. Mr Aqil appeared before the Tribunal on 9 July 2019 to give evidence and present arguments.  He was represented in relation to the review by his newly appointed registered migration agent, who did not attend the hearing.  In passing, the Tribunal notes that his current representative is not with ARVS.

10. At the commencement of the hearing, Mr Aqil provided the Tribunal with a further copy of his statement referred to above at para [8] together with:

    ·a signed acceptance of a Letter of Offer from Royal Freemasons’ Benevolent Institution (Freemasons) dated 29 November 2018 for a fixed term of 4 years employment as a Registered Nurse subject to immigration approval for an (unidentified) visa; and,

    ·documentation in relation to services provided by ARVS including: company marketing information with a summary of its Subclass 187 RSMS and Subclass 457 work visa services as well as its recruitment services; a Contract Procedure with a money back guarantee if the applicant is not successful in achieving permanent residence in Australia; receipt for $7,000 dated 16 February 2018 acknowledged by ARVS’s registered migration agent Y Choi; bank transfers confirming payment of $28,000 on 19 February 2018 to ARVS’s CBA bank account.

11. The Tribunal observed that Mr Aqil did not have a copy of his Subclass 186 visa application with him so it provided him with a copy of the application.  It then discussed with Mr Aqil statements made in his visa application which, for ease, it had highlighted in the application.  It noted text as follows on the front page of his application under the heading ‘Application context’.

    ‘The position that this application relates to must be a position that the applicant has been nominated for by their prospective employer (emphasis added). 

    This application may be refused if incorrect information is provided relating to the nomination details.

12. The next section on the visa application form requests applicants ‘Give details of the related nomination’ (emphasis added).  The Tribunal observed that Mr Aqil’s application expressly states his Subclass 186 visa application relates to an identified nomination, in this case, the nomination with transaction reference number (TRN) EGOHEHGO2K.  Mr Aqil acknowledged these details.  

13. In addition, the Tribunal discussed with Mr Aqil the declaration made by him on page 17 of

    his visa application in which, as the primary visa applicant, he positively 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)’ (emphasis added). 

    Mr Aqil acknowledged he had made the necessary declaration as set out in his Subclass 186 visa application and that his declaration was made in relation to the Trustee’s nomination with TRN EGOHEHGO2K. 

14. The Tribunal put to Mr Aqil consistent with the provisions of s.359AA of the Act that the Trustee’s nomination application was refused by the Department and no review of that decision was sought. As a result, the position to which his Subclass 186 visa application relates cannot meet the criteria in cl.186.233 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.[1] The Court observed that even a new nomination in respect of the same position made by the same employer could also not be relied upon to meet these Schedule 2 criteria because the new nomination would not be the one in relation to which the visa applicant had made their declaration in their visa application.

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

15. Mr Aqil acknowledged the Tribunal’s observation that, in the circumstances of this case, it would need to affirm the delegate’s decision.  He added that Freemasons has sought review of Department’s refusal of its nomination application for a Subclass 482 visa in respect of him: that review is still pending with the Tribunal.  To the extent that he may be required to give evidence in that matter, Mr Aqil said that he is self-represented.  Acknowledging that it appears in relation to his Subclass 186 visa application that he may have been the subject of a visa scam, the Tribunal provided Mr Aqil with a copy of its brochure Immigration Assistance with details of where he may secure pro bono immigration advice to assist him with his visa options moving forwards and to lodge a complaint with the Office of Migration Agents Registration Authority. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether Mr Aqil is the subject of an approved nomination as required by cl.186.233 of Schedule 2 to the Regulations.

    Nomination of a position

18. Clause 186.233 of Schedule 2 to the Regulations as applicable in this case is set out in full in the Attachment to this decision.  Essentially, it requires that that the position to which the visa application relates must 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 by the visa applicant as part of their current Subclass 186 visa application.  

19. 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 of the Regulations); 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.

20. As noted above, during the course of the hearing, the Tribunal put to Mr Aqil consistent with the provisions of s.359AA of the Act that the Trustee’s nomination application was refused by the Department and no review of that decision was sought. In the circumstances, the position to which his Subclass 186 visa application relates cannot meet the criteria in cl.186.233 of Schedule 2 to the Regulations and, as such, it must affirm the delegate’s decision. Mr Aqil acknowledged the Tribunal’s position in this regard.

21. The Tribunal finds that the nomination application made by the Trustee for the position of Registered Nurse (Community Health) to which Mr Aqil’s Subclass 186 visa application relates has not been approved. Accordingly, it follows that he does not meet the criteria in cl.186.233(3) of Schedule 2 to the Regulations. Therefore, cl.186.233 of Schedule 2 to the Regulations is not met.

22. Mr Aqil 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 2 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

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

    Katie Malyon

    
    Member

    ATTACHMENT- Extract from Schedule 2 to the Migration Regulations 1994

    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.

    oOOo