ISMAIL, AHMER ARIF (Migration)

[2020] AATA 2483

ISMAIL, AHMER ARIF (Migration) [2020] AATA 2483 (19 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ISMAIL, AHMER ARIF

CASE NUMBER:  1727389

DIBP REFERENCE(S):  BCC2016/1393718

MEMBER:R. Skaros

DATE:19 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 19 March 2020 at 9:30am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination – adverse information regarding the applicant known to the Department – unreasonable to disregard the adverse information – nominator has been cancelled – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 140GB, 359
Migration Regulations 1994, r 5.19

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 Immigration on 24 October 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 7 April 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(g) of the Regulations because the delegate found that there was adverse information known to Immigration about the applicant and did not consider it reasonable to disregard the adverse information.

5. The application for review form listed the nominee, Mr Mohammed Omer, as the person authorised to receive correspondence in this matter. 

6. On 2 December 2019, the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to comment on or respond to information that the Tribunal considered would, subject to the review applicant’s comments or response, be the reason or part of the reason for affirming the decision under review.  The information related to records obtained from the Australia Business Register which indicated the ABN 41 405 271 488 for the nominator Ahmer Arif Ismail, trading as Python Tech, has been cancelled since 17 January 2019.  Further, information obtained from the Australian Securities and Investment Commission indicates the business’ trading name, Python Tech, was cancelled on 30 May 2019.

7. Mr Omer wrote to the Tribunal advising that he has tried to contact the nominating employer, Mr Ahmer Arif Ismail, but has not been successful. He also noted that he intends to lodge a temporary skilled shortage visa.

8. On 24 February 2020, the Tribunal wrote to the review applicant, via the authorised recipient, inviting the review applicant to appear before it on 11 March 2020 to give evidence and present arguments. This hearing was postponed to 16 March 2020.

9. On 16 March 2020, Mr Ahmer Arif Ismail did not appear before the Tribunal. However, Mr Omer attended the hearing. The Tribunal explained to Mr Omer that it was reviewing the nomination application made by Mr Ahmer Arif Ismail trading as Python Tech. The Tribunal explained to Mr Omer that he is not the proprietor of the nominating business, which now appears to be deregistered, and does not appear to have any authority to give evidence on behalf of the nominator. In response, Mr Omer stated that he had made numerous attempts to communicate with Mr Arif Ismail but that Mr Ismail was not answering his calls. He stated that Mr Ismail informed him that the business is now closed and that he cannot assist.

10. The Tribunal acknowledged Mr Omer’s evidence but again reiterated that the obligation is on Mr Ismail to appear before the Tribunal to give evidence and present arguments on behalf of the nominator. The Tribunal further explained to Mr Omer that his own case relating to the visa refusal is a different review application that is before the Tribunal and the Tribunal would contact him about his visa refusal matter in due course.  The applicant indicated that he understood.

11. Even though Mr Omer appeared before the Tribunal, the Tribunal notes that Mr Omer is the authorised recipient, he is not a registered migration agent and is not authorised to give evidence on behalf of the applicant. The review applicant did not appear before the Tribunal to give evidence or present arguments and it appears that the review applicant is no longer interested in pursuing this review, as he is no longer lawfully operating a business.

12. The Tribunal acknowledges that on the hearing form it was indicated that a witness, Mr Khan, who is a colleague of Mr Omer would like to give evidence by telephone. The Tribunal did not contact Mr Khan because it did not consider that there was any utility in doing so. The Tribunal considers that any evidence in support of Mr Omer and his circumstances, is not relevant to the issue on which this case turns, namely whether the nominator is actively and lawfully operating a business in Australia.

13. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Status of the nominator: r.5.19(3)(b)

15. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

16. The evidence before the Tribunal indicates that the nominator, Ahmer Arif Ismail trading as Python Tech was the standard business sponsor who last identified the nominee in a nomination made under s.140GB.

17. At the time of decision, the Tribunal must be satisfied that the nominator is actively and lawfully operating a business in Australia.

18. In this case, the evidence before the Tribunal indicates that the ABN (41 405 271 488) for the nominator, Ahmer Arif Ismail trading as Python Tech, has been cancelled since 17 January 2019 and the business’ trading name Python Tech was cancelled on 30 May 2019.

19. The Tribunal has had regard to the information received from the authorised recipient, who is also the nominee, indicating that Mr Arif had informed him that the business has closed. This evidence is consistent with the evidence before the Tribunal that the nominator is not actively and lawfully operating a business in Australia.

20. The Tribunal acknowledges Mr Omer’s evidence that he intends to apply for a temporary skilled visa, however, this is not relevant to the issue in this review and, as the Tribunal explained to Mr Omer at the hearing, this review relates to the nominating employer and the requirements for approval of the nomination. 

21. As noted above, Mr Ismail did not appear before the Tribunal to give evidence and present arguments and no current substantive evidence has been provided to the Tribunal to support a finding that the nominator is actively and lawfully operating a business. For these reasons, the Tribunal is not satisfied that the nominator is actively and lawfully operating a business in Australia.

22. Given the above, the requirement in r.5.19(3)(b) is not met.

23. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

24. The Tribunal affirms the decision under review to refuse the nomination.

    R. Skaros
    Senior Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    Temporary Residence Transition nomination

    (3)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)are provided; or

    (ii)would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.