Hashmi (Migration)

[2019] AATA 6159

Hashmi (Migration) [2019] AATA 6159 (11 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Syed Muhammad Imran Hashmi
Mrs Lubna Imran
Ms Syeda Zoya Imran
Ms Syeda Zainab Imran
Ms Syeda Fatima Imran

CASE NUMBER:  1802346

HOME AFFAIRS REFERENCE(S):           BCC2017/2285197

MEMBER:Phoebe Dunn

DATE:11 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.233(3) of Schedule 2 to the Regulations.

Statement made on 11 October 2019 at 2:35pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – sponsoring employer’s position nomination refused – refusal set aside on review – applicant subject of approved nomination – members of family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 363(1)(b)

Migration Regulations 1994 (Cth), Schedule 2, cl 186.233(1), (3), 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 on 19 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 28 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of ICT Support Engineer (ANZSCO 263212).

5. 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 related nomination application made by ASIL Trading Pty Ltd ATF ASIL Trading Unit Trust, being the nomination referred to in cl.186.233(1) in respect of the applicant, was refused by a delegate of the Minister for Immigration and Border Protection on 11 December 2017.

6. The applicants appeared before the Tribunal on 18 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ilyas Mohammed, representing the nominator.

7. The applicants were represented in relation to the review by their registered migration agent, Mr Rick Gunn.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether there is an approved nomination.

   Nomination of a position

10. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

11. 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.

12. The applicant applied for the visa on the basis of the nomination made by ASIL Trading Pty Ltd ATF ASIL Trading Unit Trust on 28 June 2017, for approval for the position of ICT Support Engineer (ANZSCO 263212).  The nomination was refused by the delegate on 11 December 2017, and as such there was no approved nomination.

13. The nominator applied to the Tribunal for review of that decision.  On 11 October 2019, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

14. As the relevant nomination in respect of the primary visa applicant has been approved, the applicant meets the requirements of cl.186.233(3).

15. Therefore, cl.186.233 is met.

16. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

17. The delegate made a decision that the second, third, fourth, and fifth named applicants did not satisfy cl.186.311, which requires that they are 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 and having made a combined application with the primary applicant.

18. The Tribunal is unable to make a direction that the second, third, fourth, and fifth named applicants meet this criterion, because at the time of the Tribunal’s decision, the first named applicant did not hold a Subclass 186 visa.  The Tribunal refers the case of the second, third, fourth, and fifth named applicants to the Department to consider the applications afresh.

    DECISION

19. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.233(3).

    Phoebe Dunn
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; 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.