CHOWDHURY (Migration)

[2020] AATA 1606

CHOWDHURY (Migration) [2020] AATA 1606 (8 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Md Humayon KABIR CHOWDHURY
Ms Nurun NAHER
Mr Md Shakil Mahmud CHOWDHURY
Ms Jannatun Neim TISHA

CASE NUMBER:  1801324

HOME AFFAIRS REFERENCE(S):          BCC2017/2082169

MEMBER:Karen McNamara

DATE:8 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 8 May 2020 at 1:23pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Retail Buyer – 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, cls 186.223, 186.311

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 17 January 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 13 June 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 Mr Md Humayon Kabir Chowdhury (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated occupation of Retail Buyer (ANZSCO 639211).

5. 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 Mr Md Humayon Kabir Chowdhury to be the subject of an approved nomination. The delegate found that the nomination lodged by Kakadu Kimberly Fashion Wear Pty Ltd ATF The Chowdhury Family Trust (the nominator) was refused by a delegate of the Minister for Immigration and Border Protection on 7 December 2017.

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, third and fourth named applicants could not be granted Subclass 186 visas, as they did not meet the secondary visa criterion (cl.186.311) requiring 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 18 January 2018 for review of the delegate’s decision.

9. Mr Md Humayon Kabir Chowdhury appeared on behalf of the applicants at the hearing. Mr Md Humayon Kabir Chowdhury appeared before the Tribunal via telephone on 24 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator Mr Mohd Humayon Chowdhury in the related matter for the nomination application (AAT Case file 1732042). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

10. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

11. The applicants were represented in relation to the review by their registered migration agent.

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 of cl.186.223.

    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 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.

16. The applicant attended the hearing via telephone on the 24 March 2020. It was a combined hearing regarding the nomination refusal. The Tribunal explained that, to meet cl.186.223, the applicant must be the subject of an approved nomination. It explained that the review of the nomination refusal must be finalised before the decision in this case could be made. The Tribunal advised that it would write to the applicant advising of the decision.

17. On the 22 April 2020, the Tribunal affirmed the decision refusing the approval of the nomination made by Kakadu Kimberly Fashion Wear Pty Ltd ATF The Chowdhury Family Trust in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.186.223(2) and as such cl.186.223 is not met.

18. On 23 April 2020, the Tribunal wrote to the applicants pursuant to s.359(A) of the Migration Act (dispatched by email to the authorised recipient). The letter invited the applicants 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. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Kakadu Kimberly Fashion Wear Pty Ltd ATF The Chowdhury Family Trust, which the Tribunal explained was relevant to the applicant meeting cl.186.223(2) which requires the nomination to be approved. As the nomination has been refused, cl.186.223(2) is not met.

19. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 7 May 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement they might otherwise have had under the Act.

20. On 5 May 2020 the applicants wrote to the Tribunal via their representative in the following terms;

    ‘ We are writing in relation to the above client. The employer will proceed to review the decision for nomination in the Federal Circuit Court (FCC). Hence please make a decision accordingly.

    Thank you for your diligence and consideration with respect to this Appeal.’

21. The Tribunal notes that the representative’s submission of 5 May 2020 does not address the issue of whether there is an approved nomination and that the applicant has not provided any evidence to confirm that he is subject of an approved nomination.

22. Therefore, there is no evidence before the Tribunal to support that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

23. 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.

24. 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.

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

26. In relation to the second named applicant Ms Nurun Naher, the third named applicant Mr Md Shakil Mahmud Chowdhury and the fourth named applicant Ms Jannatun Neim Tisha, 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, Ms Nurun Naher, Mr Md Shakil Mahmud Chowdhury and Ms Jannatun Neim Tisha as a member of Mr Md Humayon Kabir Chowdhury’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second, third and fourth named applicants do not satisfy cl.186.311 of Schedule 2 to the Regulations.

27. 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

28. 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.