Hashemi (Migration)

[2018] AATA 1651

Hashemi (Migration) [2018] AATA 1651 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Seyed Hossein Hashemi
Mrs Maryam Hajari
Mr Seyed Mani Hashemi
Mr Seyed Artin Hashemi

CASE NUMBER:  1722278

DIBP REFERENCE(S):  BCC2017/1416821

MEMBER:Mark Bishop

DATE:30 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 30 April 2018 at 12:11pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Nominated position of Procurement Manager – Tribunal affirmed nomination refusal – Not subject of a nomination –Secondary applicants – Members of the same family unit – Decision under review affirmed

LEGISLATION
Migration Act 1958 ss 65, 359, 359A
Migration Regulations 1994 rr 1.13A, 1.13B, 5.19 Schedule 2 cls 186.233, 186.311

CASES

Singh v MIBP [2017] FCAFC105

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 on 18 September 2017 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 18 April 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Procurement Manager ANZSCO 133612 This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because on 7 August 2017 the nomination lodged by Ecotrade Pty Ltd, being the nomination referred to in paragraph 186.233(1) was refused by a delegate of the Minister.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies cl.186.233 which requires that the nomination has been approved.

   Applicant Seyed Hossein HASHEMI

9. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

10. 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 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.

11. The Tribunal notes the decision in Singh v MIBP [2017] FCAFC105 at [88] – [90] in which the Court held that the nomination relied to satisfy cl.186.223 must be the nomination which has been made at the time of visa application (judgment summary).

12. On 13 April 2018 the Tribunal wrote to the applicant in relation to the application for review made by him in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa.

13. On 13 April 2018 the Tribunal wrote to the applicant under s.359A requesting the applicant comment on some potentially adverse information. The Tribunal provided the particulars of the adverse information, explained its relevance and outlined the potential consequences if the Tribunal had regard to the potentially adverse information.

14. The potentially adverse information related a decision of the Tribunal on 12 April 2018 in relation to an application by Ecotrade Pty Ltd to affirm a decision to refuse the nomination.

15. The applicant did not respond to the above request as outlined in paragraph 14 above. The applicant did not provide any comments or respond to the information in writing.

16. On 13 April 2018 the Tribunal wrote to the applicant in relation to the application for review made by him in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa.

17. The Tribunal invited the applicant “under s.359(2) to provide in writing information demonstrating that you are the subject of a nomination approved by the Minister under r.5.19 as required by cl.187.233(3) of Schedule 2 to the Migration Regulations 1994”.

18. The applicant did not respond to that request for information. The applicant did not request an extension of time to respond to the request. The applicant did not provide any information as requested.

19. There is no information before the Tribunal that suggests the applicant is the subject of a nomination approved by the Minister as required by cl.186.233(3) of Schedule 2 to the Migration Regulations.

20. Accordingly the requirements of Cl.186.233(3) are not met.

21. Therefore, the Tribunal must affirm the decision under review.

    Secondary applicants Maryam HAJARI, Seyed Artin HASHEMI and Seyed Mani HASHEMI

22. An application for a Regional Sponsored Migration Scheme (subclass 186) visa has been made by the applicant. Under the migration law, a visa cannot be granted unless the relevant legal requirements that are specified in the Act and the Regulations are satisfied. Clause 186.311 of Schedule 2 to the Migration Regulations 1994 has not been satisfied. This provision provides that:

    187.311

    The applicant:

    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 187

    visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b)    made a combined application with the primary applicant.

23. The dependent applicants, Maryam HAJARI, Seyed Artin HASHEMI and Seyed Mani HASHEMI, have made a valid combined application with the primary applicant. Maryam HAJARI, Seyed Artin HASHEMI and Seyed Mani HASHEMI have not made any claim towards satisfying this class of visa other than as a claimed member of Seyed Hossein HASHEMI’s family unit, for the purpose of this application.

24. Since the main applicant is unable to meet Sub regulation 186.233, the dependent applicants are unable to meet criteria 186.311(a), which is outlined above in paragraph 22.

25. As the applicants are not a member 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, clause 186.311 is not satisfied.

    CONCLUDING PARAGRAPH

26. 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

27. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Mark Bishop
    Member