Islam (Migration) - [2024] AATA 1006

Islam (Migration) [2024] AATA 1006 (5 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Md Aminul Islam
Mrs Sharmin Akther
REPRESENTATIVE:  Mr Peng Cheng (MARN: 1172863)
CASE NUMBER:  1909733
HOME AFFAIRS REFERENCE(S):          BCC2017/2312755
MEMBER:Karen McNamara
DATE:5 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 05 April 2024 at 5:30pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – ICT Support Technicians -nec – late response to s.359A invitation – subject of an approved nomination decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 186.311
CASES
Hasran v MIAC [2010] FCAFC 40
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 April 2019, to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 29 June 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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 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.
In the present case, the first named applicant, Mr Md Aminul Islam (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of ICT Support Technicians -nec (ANZSCO 313199).
The decision record provided to the Tribunal by the applicant, records that the delegate refused to grant the visa because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, which required Mr Md Aminul Islam to be the subject of an approved nomination. The delegate found that the nomination lodged by Studynet Pty Ltd (the nominator) was refused by a delegate of the Minister for Home affairs on 28 February 2019.
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.
The delegate also found that the second named applicant (Mrs Sharmin Akther) could not be granted a Subclass 186 visa, as she did not meet the secondary visa criterion (cl.186.311) requiring her to be a member of the family unit of a person who met…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Islam (Migration)

Details

AGLC: Islam (Migration) [2024] AATA 1006
Case: [2024] AATA 1006
Decision Date: 5 April 2024

CaseChat Overview and Summary

This matter concerned an appeal before the Administrative Appeals Tribunal regarding the refusal of Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Temporary Residence Transition stream. The applicant, Mr. Md Aminul Islam, sought to have the decision to refuse his visa application reviewed, with his spouse, Mrs. Sharmin Akther, included as a secondary applicant.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, which pertains to the nomination of a position for the Subclass 186 visa. This clause requires, among other things, that the nomination for the position has been approved by the Minister and has not been subsequently withdrawn, and that the visa application is made within six months of the nomination's approval.

The Tribunal found that the nomination application associated with the position was not approved, and therefore the applicant failed to satisfy clause 186.223(2). The Tribunal noted that while the applicant made allegations against his former sponsoring employer, it was bound to conduct a merits review based on the information before it and in accordance with applicable law, without discretion to waive essential criteria. As the applicant did not meet this essential criterion, and the secondary applicant's eligibility was contingent on the primary applicant's success, the Tribunal affirmed the decision not to grant the visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the requirements of cl.186.223 of Schedule 2 to the Regulations Nomination of a position.Nomination of a position 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. 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. The Tribunal has afforded careful consideration to the entirety of the information before it and that provided by the applicant. In submissions to the Tribunal dated 15/04/2024 [sic], the applicant makes allegations against his former sponsoring employer. The Tribunal notes that it is open to the applicant to bring said allegations to the attention of the appropriate authorities. Whilst the Tribunal has empathy for the applicants’ situation, the Tribunal in conducting a merits review must come to the correct or preferrable decision on the basis of the information before it and in accordance with the applicable law. The Tribunal does not have any discretion to waive the requirements of cl 186.223 and must turn its mind to the issue before it. Having considered 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. As the 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. There is no evidence before the Tribunal to indicate that the secondary applicant meets the primary requirements for grant of the visa. As the first named applicant is found not to have met the prescribed criteria for a subclass 186 visa, the second named applicant (Mrs Sharmin Akther) as a member of Mr Md Aminul Islam’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.186.311. 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

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas. Karen McNamaraMemberATTACHMENT A186.223(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.

Ratio Decidendi

Legal Principle Established

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