Begum (Migration)

[2020] AATA 2533

Begum (Migration) [2020] AATA 2533 (2 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Salwa Begum
Mr Mohammed Amin
Miss Tashfia Laibah

CASE NUMBER:  1827096

HOME AFFAIRS REFERENCE(S):          BCC2017/3326601

MEMBER:Karen McNamara

DATE:2 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 2 April 2020 at 9:09am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – nomination refused – 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 186.223

CASES
Hasran v MIAC [2010] FCAFC 40

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 (the delegate) on 28 August 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 12 September 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 Mrs Salwa Begum (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The decision record provided to the Tribunal by the applicant, records that the delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations which required Mrs Salwa Begum to be the subject of an approved nomination. The delegate found that the nomination lodged by Swissplus Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration and Border Protection on 27 July 2018.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 186.223(2) was not met and therefore the applicant did not meet cl.186.223 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant, Mr Mohammed Amin
   and third named applicant Miss Tashfia Laibah could not be granted a Subclass 186 visa, as they did not meet the secondary visa criterion (cl.186.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

8. The applicants applied to the Tribunal on 16 September 2018 for review of the delegate’s decision. A copy of the delegate’s decision was provided to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl.186.223 of Schedule 2 to the Regulations.

    Nomination of a position

11. 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.

12. In addition, this criterion also requires that:

    ·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); 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.

13. On 3 March 2020, the review applicants were invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 9 April 2020 at 10:00 am as one of several cases to be heard concurrently. The Tribunal notes that at the time of this decision the applicants have not responded to this invitation.

14. On 10 March 2020, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. 

15. The information related to information before the Tribunal that shows the nominator is no longer trading. Information from the Australian Securities & Investments Commission (ASIC) register shows that Swissplus Pty Ltd was deregistered on 2 June 2019. There is no evidence before the Tribunal that the company’s registration has been reinstated with ASIC since that time.

16. The Tribunal explained in its letter of 10 March 2020, that this information is relevant because it suggests that the nominated position is not available to the applicant. If the Tribunal relies on this information together with other evidence before it, it may not be satisfied under r.186.223(4) that the position is still available to the applicant and further under r.186.223(2) the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister. The Tribunal may therefore find that the applicant does not meet the requirements for approval of the visa application and the decision under review may be affirmed.

17. The Tribunal’s letter of 10 March 2020 additionally stated the following;

    ‘An invitation to attend a scheduled hearing was sent to you on 3 March 2020.

    Please note, however, that if you do not respond to this letter within the stated
    or any extended timeframes granted, you will lose your right to appear before
    the Tribunal to give evidence and present arguments relating to the issues
    arising in relation to the decision under review and the hearing will be cancelled.

    You are invited to give comments on or respond to the above information in writing.
    Your comments or response should be received by 24 March 2020. If the comments
    or response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 24 March 2020, you may
    ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 24 March 2020 and you must
    state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    If we do not receive your comments or response within the period allowed or as
    extended, we may make a decision on the review without taking any further action to
    obtain your views on the information. You will also lose any entitlement you might
    otherwise have had under the Migration Act 1958 to appear before us to give
    evidence and present arguments.’

18. This invitation was sent to the last address provided in connection with the review and advised as stated above, if the comments or response were not provided in writing by        24 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the applicants comments and the review applicants would lose any entitlement they may otherwise have had under the Act.

19. As at the time of this decision, the review applicants have not provided the comments within the prescribed period and no extension has been sought or has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the applicants comments.

20. On the evidence before it, The Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl 186.223(2) of Schedule 2 to the Regulations.

21. As the first named applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 of Schedule 2 to the Regulations is not met.

22. There is no evidence before the Tribunal to indicate that the second or third named applicants meet the primary requirements for grant of the visa.

23. In relation to the second named applicant Mr Mohammed Amin and the third named applicant Miss Tashfia Laibah, the Tribunal notes that cl.186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 186 visa, and is not the holder of a Subclass 186 visa, it follows that the secondary applicants, Mr Mohammed Amin and Miss Tashfia Laibah as a member of Mrs Salwa Begum’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second and third named applicants do not satisfy cl.186.311 of Schedule 2 to the Regulations.

24. 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.

    DECISION

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

    Karen McNamara
    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.