Begum (Migration)

[2022] AATA 3294

Begum (Migration) [2022] AATA 3294 (4 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ayesha Begum
Mr Zeeshan Mohammed
Mr Zayan Hassan Mohammed
Mr Sulaiman Hussain Mohammed

CASE NUMBER:  1916848

HOME AFFAIRS REFERENCE(S):          BCC2018/2218675

MEMBER:Alan McMurran

DATE:4 August 2022

PLACE OF DECISION:  Sydney

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

Statement made on 04 August 2022 at 5:14pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Software Engineer – subject of an approved nomination – no hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233, 186.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 23 May 2018 for review of a decision made by a delegate of the Minister for Home Affairs on 21 June 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 23 May 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). The primary applicant, Ms Ayesha Begum, is a 37-year-old citizen of India (the applicant). The second, third and fourth named applicants (secondary applicants) are family members of the applicant.

3. The applicant was nominated by Lanmark Insulations Pty Ltd (the nominator) for the occupation of Software Engineer , ANZSCO 261313 (“the nominated position”). The nominator has sought review of a refusal of the nomination in a related Tribunal case.[1] The nomination must first be approved for the visa application to succeed.

   [1] T case 1914335

4. 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.

5. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position. The applicant was represented in the visa application to the Department.

6. The delegate refused to grant the visas because the applicant did not meet cl 186.233(3) of Schedule 2 to the Regulations because the Minister has not approved the nomination application by the nominator.

   Section 360 – no hearing

7. On 19 July 2022, the Tribunal sent an invitation to the review applicant under s 359A.  The invitation sought the applicant’s comments on the fact the Tribunal had affirmed the decision to refuse the nomination on the same date. The applicant was asked to respond on or before 2 August 2022. The Tribunal letter included the statements:

   “This information is relevant to the review because cl 186.233(3) requires the nomination to be approved before the subclass 186 visa which relates to the nominated position can be granted. If we rely on this information in making our decision, we may find cl 186.233(3) not met and may affirm the decision under review.”

8. On 1 August 2022, the applicant sent an email to the Tribunal stating that she was unable to provide information “or comment”. The applicant stated:

   “I am writing this mail to comment or respond to the decision made by you to refuse 186 visa grants as the nomination has not been approved. In view of my current health situation and no response from my employer to provide any help with the requested information, I am unable to provide or comment more on 186.233(3). Moving forward I would like to appear for a hearing to represent my side. In addition, my family is going through bad conditions overseas with respect to their health and I am in postpartum depression. I am not in a condition to comment much on the requested information. Hope you understand my situation.”

9. On 2 August 2022, a Tribunal officer telephoned the applicant. In that conversation, the officer explained that by failing to provide information as requested, the applicant would lose the right to appear at a hearing. The officer further explained that the Tribunal has no discretion to approve the visa without the approved nomination. The applicant acknowledged that was understood, had no further information, and inquired how long before the decision might be made, without a hearing. The officer suggested to the applicant that she may want to consider seeking some immigration assistance, as it appears the applicant is no longer represented. The applicant did not seek an extension of time to provide further information, simply stating that her health was not good, and she had no family support.

   10.Section 360(2) of the Act provides that the applicant may consent to the Tribunal deciding the review without the applicant appearing. Section 360(3) provides that an applicant is not entitled to appear where an invitation to give information under s.359 has not been provided before the time for giving the information has passed. In this instance, no extension of time to provide information was sought or granted and where to do so would be futile where the applicant had acknowledged that no information was forthcoming, and in circumstances where the nomination under review had been refused.

10. The Tribunal notes that it has some empathy for visa applicants who, through no fault of their own, are unable to proceed and are not assisted by the nominator who has sponsored them, and who are in the circumstances of the applicant without support. The Administrative Appeals Tribunal Act 1975 , however, requires that the Tribunal must pursue the objective  of providing a mechanism of review that is accessible, fair, just, economical, informal, and quick, and which is proportionate to the importance and complexity of the matter.

11. In this instance, the applicant did not give information by the time due, other than to say she was unable to comment or give information, explaining that she was unwell and had no family support. The issue before the Tribunal is not complex. The Tribunal finds that nothing is to be gained were it to defer its decision on review of its own volition. The Tribunal has determined in the circumstances, to finalise the review on the information before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant meets the requirements in regulation 186.233.

    Nomination of a position

14. 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.

15. 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.

16. On 19 July 2022, the Tribunal made a decision on review of the nomination application to affirm the Department’s decision under review to refuse the nomination. The Tribunal finds therefore that the applicant is not the subject of a nomination approved by the Minister. 

17. Therefore, cl 186.233 is not met.

    Secondary applicants

18. The secondary applicants are members of the family unit of the primary applicant who have made a combined application with the primary applicant and are dependent upon the outcome of the application for the visa by the primary applicant.

19. As the primary applicant has been unsuccessful, the secondary applicants are not the members of a family unit of a person (the applicant) who satisfies the primary criteria.

20. The Tribunal finds therefore that cl 186.311 is not met.

    Conclusion

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 applicants Employer Nomination (Permanent) (Class EN) visas.

    Alan McMurran
    Member

    
    

    ATTACHMENT A

    186.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); 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.