Ismail (Migration)

[2023] AATA 4636

Ismail (Migration) [2023] AATA 4636 (30 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bassam Ismail

REPRESENTATIVE:  Ms Latifa Al-Haouli (MARN: 1175724)

CASE NUMBER:  2100722

HOME AFFAIRS REFERENCE(S):          BCC2020/437262

MEMBER:Namoi Dougall

DATE:30 November 2023

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 30 November 2023 at 12:46pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – Cabinetmaker –applicant failed to provide the requested information – nomination refused– tribunal affirmed nomination decision –not the subject of an approved nomination – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 65, 362, 379
Migration Regulations 1994, r 1.13, Schedule 2, cl 186.223

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 7 January 2021 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 February 2020. 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 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, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cabinetmaker.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because the position to which the application relates was not the subject of an approved nomination.

6. On 29 September 2023, the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 26 October 2023. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

7. On 6 October 2023, the applicant contacted the Tribunal and advised that he was overseas to be with his daughter when she undergoes surgery on 15 October 2023. The applicant requested that the hearing be postponed until after he returns to Australia and suggested that the new hearing be from 10 November 2023. The attached travel itinerary for the applicant indicated that he was returning to Australia on 3 Novmeber 2023.

8. On 6 October 2023, the Tribunal invited the applicant to give evidence and present arguments at a rescheduled hearing on 9 November 2023, six days after the nominee had returned to Australia. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. No written response to the hearing invitation was received by the Tribunal, however, the applicant on 8 November 2023, phoned the Tribunal and gave permission for a Tribunal officer to speak with his nephew. The Tribunal officer confirmed that the hearing would be held at 10:00 am on 9 October 2023. The applicant through his nephew stated that he did not think he had received the hearing invitation from his representative and would contact her straight away. The applicant through his nephew confirmed that he would attend the hearing the following day. The Tribunal officer provided his direct number in case the applicant needed to contact the Tribunal again.

9. The applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied the review applicant was properly invited to a hearing in accordance with s 379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In addition to the above, a Tribunal officer contacted the office of the applicant’s representative and advised that the hearing was scheduled for 9 November 2023 and information requested a number of times had not been provided. Further, the Tribunal postponed the hearing as the nominee was not available until his return to Australia on 3 November 2023 even though the Tribunal was not informed of the availability of the director of the applicant, Mr Hello Bassa. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

10. On 15 November 2023, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting the applicants to comment on or respond to adverse information. The adverse information was that the primary applicant had applied for the Subclass 186 visa on the basis of a nomination of a position made by the nominating buisness and that on4 August 2020, the Department had refused that nomination. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination which was affirmed by the Tribunal on 9 November 2023.

11. The applicants did not respond to the Tribunal’s letter of 29 November 2023. There has been no request for an extension of time by the relevant date

12. The applicant was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the requirements of reg.186.223.

Nomination of a position

1. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

2. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made the nomination

   ·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.

3. The Department on 4 August 2020, refused the nomination application lodged by the nominating business and the delegate’s decision was affirmed by the Tribunal on 9 November 2023. Therefore, there is no approved nomination to satisfy cl.186.233(2) and the primary applicant does not meet cl.186.233.

4. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

DECISION

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

Namoi Dougall
Member

ATTACHMENT A

186.233(1)     The position to which the application relates is the position:

(a)nominated in an application for approval that:

(i)identifies the applicant in relation to the position; and

(ii)is made in relation to a visa in a Direct Entry stream; and

(iii)seeks to meet the requirements of subregulation 5.19(10); and

(b)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 person who will employ the applicant is the person who made the nomination.

(3)     The Minister has approved the nomination.

(4)     The nomination has not subsequently been withdrawn.

(4A)    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.

(5)     The position is still available to the applicant.

(6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.