Azeem (Migration)

[2019] AATA 3396

Azeem (Migration) [2019] AATA 3396 (3 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Azeem
Mrs Rafia Azeem
Mr Vahaj Azeem
Mr Rohaan Azeem

CASE NUMBER:  1828709

HOME AFFAIRS REFERENCE(S):          BCC2017/1727069

MEMBER:Jennifer Cripps Watts

DATE:3 July 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 03 July 2019 at 5:26pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – nomination refused – review withdrawn – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2 cls 180.311, 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 11 September 2018 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 15 May 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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager. A nomination was made, identifying the applicant for the nominated occupation, by Z Mahmood & N Zafar Metro Sports Australia (the sponsor). On 29 June 2018, the nomination was refused and, on 11 September 2018, the Subclass 186 visas relating to that nomination (that are the subject of this review) were refused. The visas were refused because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because he was not the subject of an approved nomination.

5. Prior to constitution of his matter to a member, a Tribunal hearing was scheduled for the applicants and, on 6 June 2019, the registry sent them an invitation in writing.  A response was received indicating that the applicants would attend the hearing, but their migration agent would not.

6. After the applicants’ matter was constituted, when reviewing their files the Tribunal noticed that the applicant did not appear to be the subject of an approved nomination, as required by cl.186.223(2).  On 14 June 2019, the Tribunal wrote to the applicant to inform him of this adverse information, observing its statutory obligations under the Act, inviting him to comment or respond by 28 June 2018.  The adverse information was he was not the subject of approved nomination because the sponsor (Tribunal matter number 1820893) had informed the Tribunal on 28 March 2019 that they wished to withdraw their review application and, on 1 April 2019, the Tribunal accepted the withdrawal and therefore no longer had jurisdiction to review the nomination refusal decision.  The applicant was informed that he would not be able to meet the criteria for the grant of the visa unless he had an approved nomination or pending review of the nomination refusal relating to the Subclass 186 visa that is the subject of the review and that this would be the reason or a part of the reason for affirming the decision to refuse the visas.

7. In the letter sent to the applicant on 14 June 2019, he was informed that he needed to respond by 28 June 2019 or he would lose his entitlement to attend a hearing to give oral evidence.  He was also informed that he could request additional time to respond.  The applicant did not request additional time to respond.  He responded in writing, through his migration agent, Mr Gentle, by email indicating that it was sent at 10:59 on 1 July 2019 (received by the Tribunal at 11:07am), which is outside the statutory timeframe.

8. The Tribunal wrote to the applicants on 1 July 2019 explaining that they had lost their entitlement to appear before the Tribunal to give oral evidence because the response had been received out of time and that the previously scheduled hearing had been cancelled.  As a matter of fairness to the applicant, he was given a few more days to provide any additional information (by 5:00pm Wednesday 3 July 2019) before the Tribunal would proceed to make a decision in the matter.  The applicant sent some documents in response on Wednesday afternoon, 3 July 2019.  They were duplicates of documents that had already been sent.

9. The applicants have been represented since making the visa application and in relation to the review by their registered migration agent, Mr Matthew Gentle, who is their authorised recipient.  He has advised that he now continues acting for the applicants free of charge until their AAT matter is finalised.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the primary criteria for the grant of the visa. The determinative issue when the visa was refused was that he did not have an approved nomination. This continues to be the determinative issue on the review. Clause 186.223(2) of Schedule 2 to the Regulations is a mandatory requirement. The Tribunal has no discretion to waive the criteria.

12. The Tribunal has had regard to the Department and Tribunal files, including information contained in the applicant’s online visa application.  It is acknowledged that the applicant has provided a written statement and information about why the nomination was refused and other claims concerning the sponsor.  However, this is not relevant to the issue on review, which is whether he has an approved nomination or there is a nomination refusal relating to his Subclass 186 refusal pending review. 

13. In the response received to the s.359A letter, Mr Gentle says, in summary, that he has explained to the applicant that the information he provided was not ‘on point’ and ‘does not address any of the issues and concerns raised by the AAT in the letter dated 14 June 2019’.  The Tribunal considers this to be correct advice.  On instruction from his client, Mr Gentle said he nevertheless attached documents which appear to the Tribunal to relate, essentially, to the reasons why the nomination was refused.  As mentioned, the documents are acknowledged but are not relevant to the issue on the review.  The Tribunal acknowledges that the applicant claims that the sponsor did not pay him wages from January to April 2019,  that the sponsor did not provide him with an accurate PAYG statement for the 2017-2018 financial year and that he contacted Fair Work and lodged a complaint (enquiry number 1322107), and also lodged a complaint about the sponsor with the Department. 

    Nomination of a position

14. 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 position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

15. In addition, this criterion also requires, among other things, that the nomination has been approved and has not been subsequently withdrawn.

16. As mentioned above, the nomination by the sponsor, Z Mahmood & N Zafar (trading as Metro Sports Australia), relating to this applicant’s Subclass 186 visa, was refused, they applied for review and then withdrew the review application.  Their Tribunal matter was finalised on 1 April 2019 and the refusal of the nomination is therefore no longer pending review.

17. On the evidence, the applicant, relating to his Subclass 186 visa application, is not the subject of an approved nomination or a refusal of a nomination pending review.

18. Therefore, cl.186.223(2) is not met.

19. 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.

    Secondary applicants

20. The applicant applied for the Subclass 186 visas that are the subject of this review in a combined application on 15 May 2017. Clause 180.311 of Schedule 2 to the Regulations requires that secondary applicants must be members of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the Tribunal has found that the applicant does not satisfy the primary criteria for the grant of the relevant Subclass 186 visa, the decision to refuse the visas of the second, third and fourth named applicants – Rafia Azeem born 1977, Rohaan Azeem born 2008 and Vahaj Azeem born 2001 - must also be affirmed.

    DECISION

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

    Jennifer Cripps Watts
    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.