Islam (Migration)

[2020] AATA 2549

Islam (Migration) [2020] AATA 2549 (2 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Md Tajul Islam

CASE NUMBER:  1835894

HOME AFFAIRS REFERENCE(S):          BCC2017/629990

MEMBER:Karen McNamara

DATE:2 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 2 April 2020 at 10:57am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Program or Project Administrator – no approved nomination – sponsor ceased trading – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, r 1.13; Schedule 2, cl 186.223

CASES

Hasran v MIAC [2010] FCAFC 40     

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 (the delegate) on 16 November 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 February 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, Mr Md Tajul Islam (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Program or Project Administrator (ANZSCO 511112).

5. 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 Tajul Islam to be the subject of an approved nomination. The delegate found that the nomination lodged by Rose View Corporate Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs on 17 October 2018.

6. 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.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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

10. 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.

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 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. On 3 March 2020, the Tribunal invited the review applicant under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 9 April 2020 at 10:00 am, as one of several cases to be heard concurrently. The Tribunal notes that at the time of this decision the applicant has not responded to this invitation.

13. On 10 March 2020, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant 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. 

14. The information related to information before the Tribunal that shows the nominator is no longer trading. Information from the Australian Securities & Investments Commission (ASIC) register shows that Rose View Corporate Pty Ltd was deregistered on 3 November 2019. There is no evidence before the Tribunal that the company’s registration has been reinstated with ASIC since that time.

15.   The Tribunal explained in its letter of 10 March 2020, that this information is relevant because it suggests that the nominated position is not available to the applicant. If the Tribunal relies on this information together with other evidence before it, it may not be satisfied under r.186.223(4) that the position is still available to the applicant and further under r.186.223(2) the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister. The Tribunal may therefore find that the applicant does not meet the requirements for approval of the visa application and the decision under review may be affirmed.

1. The Tribunal’s letter of 10 March 2020 additionally stated the following;

   ‘An invitation to attend a scheduled hearing was sent to you on 3 March 2020.

   Please note, however, that if you do not respond to this letter within the stated
   or any extended timeframes granted, you will lose your right to appear before
   the Tribunal to give evidence and present arguments relating to the issues
   arising in relation to the decision under review and the hearing will be cancelled.

   You are invited to give comments on or respond to the above information in writing.
   Your comments or response should be received by 24 March 2020. 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 24 March 2020, 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 before 24 March 2020 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.

   If we do not receive your comments or response within the period allowed or as
   extended, we may make a decision on the review without taking any further action to
   obtain your views on the information. You will also lose any entitlement you might
   otherwise have had under the Migration Act 1958 to appear before us to give
   evidence and present arguments.’

2. The invitation was sent to the last address provided in connection with the review and advised as stated above, if the comments or response were not provided in writing by        24 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s comments and the review applicant would lose any entitlement they may otherwise have had under the Act.

3. The review applicant has not provided the comments within the prescribed period and no extension was sought or has been 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the applicant’s comments.

4. On 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.

5. As the applicant does not meet an essential criterion for the grant of a subclass 186 visa, the applicant does not meet cl.186.223 of Schedule 2 to the Regulations.

6. 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

7. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

   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.