Hove (Migration)

[2021] AATA 2272

Hove (Migration) [2021] AATA 2272 (17 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mufaro Hove
Ms Silvia Ndlovu
Mr Kudakwashe Hove
Miss Chidochashe Enitah Hove

CASE NUMBER:  2101726

HOME AFFAIRS REFERENCE(S):          BCC2016/1321675

MEMBER:Andrew McLean Williams

DATE:17 June 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas, yet recommends that the applicants’ circumstances now be further considered, under s.351 of the Act.

Statement made on 17 June 2021 at 3:39pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Condition Monitoring Technician (Fitter) – applicant had ceased employment with sponsor – nomination withdrawn – request for Ministerial intervention – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; r 1.13

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 4 February 2021 thereby refusing to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicants applied for the visas on 31 March 2016. 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 (Cth) (‘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 only satisfy 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 Temporary Residence Transition stream, to work in the nominated position of Condition Monitoring Technician (Fitter) that had been proposed for the applicant by BHP Group Limited.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations by reason that on 11 May 2020 the Department had received advice from BHP Group Limited that the applicant had ceased employment with them on 1 May 2020, such that BHP Group Limited wished to withdraw their nomination of an employment position for the applicant.

6. The applicants appeared before the Tribunal on 16 June 2021 by means of audio-visual to give evidence and present submissions.

7. The applicants were represented in relation to this review by their lawyer, Ms Nicole Farrar of Estrin Saul Lawyers. Prior to the hearing Ms Farrar had prepared detailed written submissions (those dated 9 June 2021), requesting that this case be referred for Ministerial intervention pursuant to s.351 of the Act.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed, yet the case under review now warrants further consideration for Ministerial intervention.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of clause 186.223.

   Nomination of a position

10. Clause 186.223 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.

11. 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 reg 1.13A and reg 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. An employment position for the applicant had originally been nominated by BHP Group Limited. However, on 11 May 2020 BHP Group Limited contacted the Department and advised that they wished to withdraw their sponsorship of the applicant. In these factual circumstances it is not possible for the applicant to meet the requirements of clause 186.223(3) and (4), which require that the “nomination has not subsequently been withdrawn” and that the “position is still available for the applicant”.

13. Therefore, cl 186.223 is not met.  In these circumstances the other applicants, as family members of the first-named applicant are unable to meet the requirements of clause 186.311.

14. 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.

    Request for Ministerial Intervention

15. The applicants are each citizens of the Republic of Zimbabwe.  The first-named applicant Mufaro Hove arrived in Australia in 2011 as a 457 visa holder and his other family members (Silvia, Chidochase and Kudakwashe) then followed, in 2014.  Thereafter the family remained in Australia as 457 visa holders.  On 31 March 2016, Mufaro lodged an application for a Subclass 186 visa.  This was refused only comparatively recently, on 4 February 2021.

16. The Applicants have requested that their case be referred for Ministerial intervention under s.351 of the Act, on compassionate grounds, and/or on grounds of exceptional economic, scientific, cultural or other benefit that would result from their being permitted to remain in Australia. The precise grounds for same are as is now specified in their submission before the Tribunal, that dated 9 June 2021.

17. In light of that submission, the Tribunal considers that there are now cogent grounds warranting proper consideration as a basis for Ministerial intervention in the case of the applicants.

    DECISION

18. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas, yet recommends that the applicants’ circumstances now be further considered, under s.351 of the Act.

    Andrew McLean Williams
    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.