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 the primary visa criteria and holds a Subclass 186 visa.
The applicants lodged an application for review with the Tribunal on 18 April 2019. The review application was accompanied by a copy of the delegate’s decision.
On 1 March 2024, the Tribunal invited the review applicants under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient/representative) to appear before the Tribunal by telephone, on 27 March 2024 at 10:30 am (NSW time). The invitation requested the applicants to provide all documents they intended to rely on to support their case by 20 March 2024. The invitation further noted “The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing.”
On 4 March 2024, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient/representative). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review.
The information related to information before the Tribunal that suggests there is no approved nomination associated with the applicants’ subclass 186 visa application. On 22 September 2023, the nominating employer, Studynet Pty Ltd withdrew their nomination review application, which was accepted by the Tribunal on 17 October 2023.
The Tribunal’s letter of 4 March 2024, noted that this information is relevant because cl.186.223(2) requires that the nomination made in relation to the applicant by the nominating employer, has been approved.
The letter further stated:
“ The nomination relied on to satisfy cl 186.223 must be the one that was made at the time of the visa application – it is not possible to rely on another nomination. You must have a related nomination to be able to be granted the visa.
If the Tribunal relies on this information, it may find that the nomination in relation to you has not been approved and consequently the decision under review would be affirmed. You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 18 March 2024. If the comments or response are in a language other than English, they must be accompanied by an
English translation from an accredited translator.
If you cannot provide your written comments or response by 18 March 2024, you may ask us for an extension of time in which to provide the comments or response. If you
make such a request, it must be received by us by 18 March 2024, and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether
or not the extension has been granted.
An invitation to attend a scheduled hearing was sent to you on 1 March 2024 to attend a hearing via telephone on 27 March 2024 at 10:30 am. It is important to note that if you do not respond to this letter within the date specified or within any extended timeframe, you may lose your right to attend the scheduled hearing and it will be cancelled. The Tribunal may then proceed to make a decision on the review without taking any further action to obtain your views on the information.”’
The invitation to comment/respond was sent to the authorised recipient/representative at the last email address provided in connection with the review and advised as stated and highlighted above, if the comments/response were not provided in writing by 18 March 2024, the Tribunal may make a decision on the review without taking further steps to obtain the applicants’ comments and the review applicants would lose any entitlement they may otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.
On 7 March 2024, the applicants provided to the Tribunal via email, a completed ‘Response to Hearing Invitation’ form, noting that they will take part in the hearing scheduled for 27 March 2024.
As mentioned previously in this decision, on 4 March 2024 the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient/representative). The letter invited the applicants to provide by 18 March 2024, comment on or response to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review.
The invitation to comment/respond was sent to the authorised recipient/representative at the last email address provided in connection with the review and advised as stated and highlighted, if the comments/response were not provided in writing by 18 March 2024, the Tribunal may make a decision on the review without taking further steps to obtain the applicants’ comments and the review applicants would lose any entitlement they may otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.
The Tribunal notes that on 7 March 2024, the applicants did complete and send to the Tribunal a completed ‘Response to Hearing Invitation’ form. However, the applicants did not otherwise provide any response to the invitation to comment letter by the stipulated time.
By responding to a hearing invitation using the template ‘Response to Hearing Invitation’ form, the applicant cannot be seen as also responding to a written invitation under s 359A or 424A.[1] This is because the template form allows the applicant to notify the Tribunal of any requirements for the hearing but cannot be seen as a ‘reply’ or ‘answer’ directed to the information requested by the Tribunal in a s 359A/424A invitation.[2]
[1] McDonagh v MICMSMA [2022] FedCFamC2G 226 at [53]–[64].
[2] McDonagh v MICMSMA [2022] FedCFamC2G 226 at [63].
The applicant did not provide the comments or a response within the prescribed period and no extension was sought or was granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
On 19 March 2024, the Tribunal wrote to the applicant (dispatched by email to the authorised recipient/representative) advising the following;
“…On 4 March 2024, the Tribunal sent you a letter inviting you to comment on or respond to information. In the letter, you were warned that failure to provide a response by 18 March 2024 to the letter will result in a cancellation of your scheduled hearing.
To date, the Tribunal has not received a response from you. Accordingly, the hearing scheduled for 27 March 2024 at 10:30am has now been cancelled…”
On 19 March 2024, the applicant wrote to the Tribunal via email advising as follows;
“ This is Md Aminul Islam regarding my AAT hearing on the date of 27/03/2024. Dear sir I received a letter for response to AAT through my Lawyer Mr Peng Cheng on 04/04/2024.
I also emailed him to help me about this hearing at the same day . Then he answered me, my nomination withdrawn by STUDYNET and he can't really any thing given isn't a nomination approval.
He also suggested me to attend to the hearing by myself. That's why I communicate with AAT directly and i provided that responded letter on07/03/2024 by email.
Honorable member, that's why I provided all the documents by express post on 18/03/2024. Please see the postal evidence and please re-consider my hearing date. Today I received another email through Mr Peng Cheng, Where mentioned my hearing date canceled du to i did not provide the documents and did not responded on time on by 18/03/2024.
[3] Prepared and transcribed as submitted by applicant.
Dear sir, please see the below postal slip and photos i provided. I do apologies for my inconvenience. For the above circumstances please reconsider me and give me chance to attend my hearing . I am highly appreciate for your kind consideration.[3]
The applicant attached photographs of an Australia Post Express Post envelope addressed to the Tribunal with an affixed receipt time and date stamped 18 March 2024 at 16:13hrs. The applicant also provided a copy of an email from the representative dated 4 March 2024 in which the representative stated “The AAT has advised that the business has already withdrawn its appeal. I can’t really do anything given this as the AAT can only refuse where there isn’t a nomination approval. I would help if I could. You would need to look at other visa options if you want to stay in Australia.”
On 19 March 2024, the applicant further wrote to the Tribunal via email advising he had attached “all the required documents for his AAT hearing on 27 March 2024”. The email was accompanied by copious amount of material including PBS scripts and medical certificates dated October 2017, payroll records, Income Statements, photographs and a written submission dated 15/04/2024 [sic].
Again on 19 March 2024, the applicant wrote to the Tribunal via email advising as follows;
“ I, Md Aminul Islam do honor and respect honorable member for your decision and sorry to let you know I provided my comments or response on 18/03/2024 via Australian Express post. I received the confirmation letter for comments on 04/03/2024 from AAT through my Lawyer Mr Peng Cheng. I also send an email to Mr Peng Cheng on 04/03/2024 about to know my hearing and requested him to help me. Then he replied me at the same day my nominating employer Studynet Pty Ltd withdrew their nomination review application on 22 September 2023. which was accepted by the tribunal on 17 October 2023. This news first time i know from my lawyer on04/03/2024 and also i saw in the AAT letter. My employer Studynet Pty Ltd did not notice me or never ever discuss with me about the nomination application withdrawn. I also did not received any email, mail, message, or any written letter or documents from my employer Studynet Pty Ltd. My lawyer Mr Peng Cheng also suggested me can't help me for my nomination application because my nomination application was withdrawn. That's why I personally made a decision i will attend my hearing on 27/03/2024 at 10;30 am. That's why I provided the confirmation letter on 07/03/2024 by myself directly from my email address. I also provided the comments or response all the hard copy via Australian express post on 18/03/2024 to Administrative Appeals Tribunal, GPO, Box-9955, Sydney NSW,2001. Dear honorable member, for the above circumstances if you extend of time for me i would be very grate full to you. Dear sir, if you consider my situation and extend the time for me it will help me a lot to provide comments or response again. Today i also send all the soft copy again via email for your kind consideration. please see my providing postal documents and tracking number about my post. I am highly appreciate for your kind consideration.”[4]
[4] Prepared and transcribed as submitted by applicant.
The email was accompanied by photographs of an Australia Post Express Post envelope and receipts as previously submitted via the previous email on 19 March 2024.
The applicant subsequently provided numerous emails sent on the 19 March 2024 to the Tribunal, accompanied by copious amount of material. The emails stated the following
“ This is Md Aminul Islam, ICT Support Technician (Studynet Pty Ltd) Suit 1.02, Level 01, 233 Castlereagh Street, Sydney, 2000. Dear sir I am making a complain against Mohammed Hossain and Yasmin Anwar, StudyNet Pty Ltd with strong evidence. I managed total 23 different very strong evidence against them. Some of the evidence is very big that's why its difficult to provide attached with email. For this reason I send all the evidence by Australian Express post on 18/03/2024. Dear sir, Me and my family suffering a lot by StudyNet Pty Ltd since 2013 till today. We lost our everything by this company. I explained all my circumstances in the written complain letter. Dear sir once, you receive my written complain letter with evidence against Mohammed Hossain & Yasmin Anwar(Studynet Pty Ltd), Please accept my complain and please take a necessary action based on my provided documents. I also attached few documents below for your kind consideration. Please see the documents below. I am highly appreciate for your kind consideration.”
On 20 March 2024, the applicant contacted the Tribunal via telephone enquiring as to whether he had provided information by the prescribed time. Tribunal records show the posted information was received and uploaded to the Tribunal case management system on 20 March 2024. The Tribunal advised the applicant that the information is required to be received by the Tribunal by the prescribed time – not posted or sent by the prescribed time. The Tribunal referred the applicant to its letter of 4 March 2024 in which the consequences of not providing a response by the prescribed time was clearly articulated. The applicant was advised that he had lost the right to a hearing, however the member would afford him opportunity to provide any further information he wished to be considered by 27 March 2024.
On 20 March 2024, the Tribunal wrote to the applicants (dispatched by email to the authorised recipient/representative) confirming that the Tribunal received the applicants’ responses to the 359A information request after the prescribed period. The applicants therefore are not entitled to a hearing, however the Tribunal would accept any further submissions, the applicants may wish to make, by 27 March 2024.
As at the time of this decision no further information has been received from the applicants.
The Tribunal is satisfied that the invitation to provide information, was sent to the authorised recipient at the correct email address as provided to the Tribunal, however information was provided after the stipulated timeframe.
In the circumstances, the Tribunal finds the applicants have lost the right to appear before the Tribunal to give evidence and present arguments relating to this review application. The Tribunal, therefore, has decided to proceed to make its decision on the available evidence without taking further steps to obtain the applicants’ comments.
The applicants were represented in relation to the review.
The Tribunal notes that copious amounts of material were lodged by the applicants. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.
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
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Karen McNamara
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.