Jilani (Migration)

[2018] AATA 2640

Jilani (Migration) [2018] AATA 2640 (6 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ghulam Jilani
Mrs Tahneit Jilani

CASE NUMBER:  1717982

DIBP REFERENCE(S):  BCC2016/1675453

MEMBER:Penelope Hunter

DATE:6 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 06 June 2018 at 3:59pm

CATCHWORDS
Migration – Employer Nomination (Permanent) visa – Subclass 186 – Employer Nomination Scheme – Subject of an approved nomination – Refusal of nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2 cls 186.233, 186.242

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 25 July 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 9 May 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Pre-Press Trades Worker. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the applicant was not subject to an approved nomination.

   Background

6. The applicant applied for the visa on the basis of being nominated by his potential employer, Australian Biz Exchange Pty Ltd. An application by Australian Biz Exchange Pty Ltd to the Department for approval of the nomination was refused by the Department on 17 May 2017. As the requirement that the Minister approve the nomination under cl. 186.233 of Schedule 2 had not been satisfied, the delegate found that the applicant did not meet the criteria in cl. 186.242 of Schedule 2 and refused the application.

7. Australian Biz Exchange Pty Ltd and the applicant applied to the Tribunal for a review of the decision to refuse the nomination application and the visa application. On 8 May 2018, the Tribunal affirmed the decision to refuse the nomination application by Australian Biz Exchange Pty Ltd. On 11 May 2018, the Tribunal wrote to the applicant pursuant to s.359A of the Act providing this information. The applicant was advised that the information was important as cl. 186.233 requires that the nomination be approved. The applicant was requested to respond to this information by 25 May 2018.

8. The applicant responded to the Tribunal’s letter on 25 May 2018 by email as follows;

   “I am aware that the nomination review application was not successful and I am aware of the requirements for my visa review to be successful. Thanks”

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirement of cl. 186.233.

    Nomination of a position

11. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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.

12. The Tribunal has considered the submissions of the applicant. The applicant has not provided evidence of an approved nomination.

13. The refusal of the related nomination application by Australian Biz Exchange Pty Ltd by the Department has been affirmed by the Tribunal on review on 8 May 2018. This was the nomination that was the subject of the declaration when the visa application was lodged by the applicant. This means that there is no nomination before the Tribunal which has been approved. Therefore, cl. 186.233(3) is not met.

14. The Tribunal finds that cl 186.233 is not met.

15. 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.

16. The second named applicant has applied for the visa on the basis of being a member of the family unit of the applicant. As the applicant has not satisfied the primary criteria for the grant of the visa, it follows that the secondary applicant as a member of his family unit also does not meet the criteria for the grant of the visa.

    DECISION

17. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

18. Penelope Hunter