Jahan (Migration)

[2020] AATA 738

Jahan (Migration) [2020] AATA 738 (13 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sadia Jahan
Mr Pradip Royhan
Miss Maliha Royhan

CASE NUMBER:  1706363

HOME AFFAIRS REFERENCE(S):          BCC2016/2598325

MEMBER:Penelope Hunter

DATE:13 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.223 of Schedule 2 to the Regulations.

Statement made on 13 March 2020 at 4:38pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Medical Administrator ­– subject of an approved nomination ­­– nomination application now approved by the Tribunal – adverse information ­– allegations not substantiated – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 21 March 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 5 August 2016. 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, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Medical Administrator. This is a stream designed for Subclass 457 visa holders who have worked for their employer for at least two years, and that employer has offered them a permanent position in the same occupation. The applicant’s employer in this case is a partnership business of MA Chowdhury and MS Dowla. The employer applied for approval to nominate the position on 5 August 2016. This nomination was not approved.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination to which the visa application related was not approved.

6. The applicants appeared before the Tribunal on 28 November 2018 and 26 February 2020 to give evidence and present arguments. The matter was listed as a combined hearing with the application for review by MA Chowdhury and MS Dowla. The Tribunal also received oral evidence from Dr Mohammad Dowla.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. The Tribunal has reviewed the application made by MA Chowdhury and MS Dowla for the nomination which identified that applicant as the nominated person. The details of the nomination given on the visa application match that in the nomination application which contained the required declaration. The Tribunal finds that the requirements of cl. 186.223(1) are satisfied.

10. 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.

11. The employer nomination of MA Chowdhury and MS Dowla in which the applicant was identified as the relevant subclass 457 visa holder was refused by the Department on 20 February 2017. MA Chowdhury and MS Dowla sought a review of that decision by the Tribunal and on 13 March 2020 the Tribunal determined to set aside the Department’s decision and substituted a decision to approve the nomination. The Tribunal is satisfied from the evidence presented by Dr Dowla and the applicant that the position has not been withdrawn. The visa application under review was filed on 5 August 2016, this is not more than six months after the nomination was approved.

12. The Tribunal is aware that the Department’s computerised ICSE records document that the Department had received allegations regarding possible employer/ sponsor breach provided in April 2016 and again in July 2016. The notes record that no action was taken, and the Tribunal is unable to discern the source of the allegation. Pursuant to the provisions of s.359AA of the Act the Tribunal put the information regarding the records to Dr Dowla and the applicant at the hearing on 26 February 2020. They both elected to comment immediately and claimed to have no knowledge of the allegations. Dr Dowla gave evidence that to his knowledge, neither he nor Dr Chowdhury had been contacted by the Department, and he was not aware that the partnership or any associated entity had ever been the subject of an investigation. The applicant told the Tribunal that she was confident that her employer was complying with its obligations and she had no concerns that would found any allegations made to the Department. In the circumstances, the Tribunal considers that it is reasonable to disregard the adverse information contained in the Department records. This is because there are no details regarding the substance of the allegations, and they do not appear to be the subject of any investigation or action by the Department. Furthermore, the applicant and the nominated employee have no knowledge of such information. There is nothing, to satisfy the Tribunal as to the gravity of such allegations and even whether they can be substantiated. The fact that no action was taken by the Department may also suggest that they did not warrant action.

13. The Tribunal is satisfied that the requirements of cl.186.223 are met.

14. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the grant of the visa.

15. In relation to the second and third named applicant, as they have applied for the visa as a member of the family unit of the applicant, the appropriate course is to also remit their application to Department for reconsideration on the basis that the applicant satisfies cl. 186.223 of Schedule 2 to the Regulations.

    DECISION

16. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.223 of Schedule 2 to the Regulations; and

    Penelope Hunter
    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.