El Hallak (Migration)

[2018] AATA 3509

El Hallak (Migration) [2018] AATA 3509 (8 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adnan El Hallak

CASE NUMBER:  1700918

HOME AFFAIRS REFERENCE(S):           BCC2016/1431670

MEMBER:Kate Timbs

DATE:8 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 August 2018 at 5:01pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cl 186.223(2)

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 Immigration and Border Protection to refuse to grant Mr El Hallak an Employer Nomination (Permanent) (Class EN) visa under section 65 of the Migration Act 1958 (the Act).

2. On 12 April 2016, Mr El Hallak applied for a visa in the Temporary Residence Transition stream. On 16 January 2017, the delegate refused to grant the visa.  

3. On 18 January 2017, Mr El Hallak applied for review of that decision.

   RELEVANT LAW AND ISSUE FOR THE TRIBUNAL TO DETERMINE

4. The criteria for the grant of the visa in section 186 of Schedule 2 of the Migration Regulations. Clause 186.223 requires that the Minister has approved the nomination for the position to which Mr El Hallak’s visa application relates under regulation 5.19.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence considered

5. The Tribunal considered documents relevant to the review in the Department’s visa application file and Mr El Hallak gave evidence at hearing on 16 April 2018.

   Nomination of a position

6. Mr El Hallak was identified in a nomination in an application for approval of a nomination of a position made by Unique Finishing Pty Ltd. However, on 16 July 2018, the Tribunal affirmed the decision made by a delegate of the Minister of Home Affairs not to approve that nomination.

7. On 16 July 2018, the Tribunal advised Mr El Hallak of that decision and that, unless it had evidence of a nomination by another employer, it would find there is no approved nomination of an occupation in relation to him and that he did not satisfy clause 186.223.

8. On 26 July 2018, Mr El Hallak requested the Tribunal delay making its decision because another employer wished to apply for approval of a nomination of a position in relation to the visa application. The request is open ended, it would take some time for the Minister to consider it and the Tribunal does not know if the Minister is likely to approve it. In those circumstances, and taking account of the Tribunal’s obligation to make timely decisions, the Tribunal decided not to defer making its decision.

9. In the above circumstances, the Tribunal finds that there is no approved nomination of an occupation in relation to Mr El Hallak. He therefore does not satisfy clause 186.223 and it will affirm the decision under review for that reason.

   DECISION

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

    Kate Timbs
    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.