Khan (Migration)

[2023] AATA 1578

Khan (Migration) [2023] AATA 1578 (30 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kiran Khan
Mr Allenabi Khan
Master Ammar Khan
Master Hassan Khan
Master Umar Khan
Master Yusuf Khan

REPRESENTATIVE:  Mr Sujeevan Kumar Peru (MARN: 1909662)

CASE NUMBER:  1928691

HOME AFFAIRS REFERENCE(S):          BCC2018/1904033

MEMBER:Amanda Mendes Da Costa

DATE:30 May 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 30 May 2023 at 8.33am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – contract administrator – related nomination application refused and affirmed in separate hearing – diligent employee for significant period – no explanation of refusal and review to applicant by nominator – members of family unit – nomination decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
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 Home Affairs on 25 September 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 1 May 2018. 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 first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Contract Administrator ANZSCO Code 511111.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because he was not the subject of an approved nomination.

6. The applicants appeared before the Tribunal (via telephone) on 25 May 2023 to give evidence and present arguments.

7. The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not be conducted by telephone.  The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear and understand each other throughout the hearing.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

8. At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision.  The Tribunal also explained the role of the applicant’s representative during the hearing.  The Tribunal informed the applicant that it would seek submissions from both of the applicant and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.

9. The applicants were represented in relation to the review.

10. In making its decision, the applicant has considered the material in both the Departmental and Tribunal files.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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

13. 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.

14. 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 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.

15. During the hearing, the Tribunal discussed with the applicant the following information[1]:

    ·The application for approval of the nominated position made by MAXPRESS TRADING COMPANY PTY LTD (the nominator) was refused by a delegate of the Minister.

    ·The nominator sought a review of that decision but it was affirmed by the Tribunal on 25 October 2022.

    ·This means that the nominator’s application for the nominated position has not been approved.

    [1] This information was also the subject of a letter (dated 27 April 2023) sent the applicants pursuant to s 359A of the Act.

16. In response, the application concede that she was not the subject of an approved nomination by the nominator or any other sponsor.  She explained that she had been employed by the nominator in the nominated position of Contract Administrator (ANZSCO 511111) from May 2014 to April 2021.  During this period, she had been a hard-working and loyal employee who performed her duties as directed by the nominator.

17. The applicant explained that she had no understanding of the reasons for the nomination decision being refused by the delegate and the Tribunal’s decision to affirm the primary decision for the nominator.  She said that the nominator had never explained to her what had happened with the nomination application[2].

    [2] This explanation is consistent with the contents of the applicant’s email to the Tribunal dated 18 May 2023.

18. Whilst the Tribunal accepts that the applicant was a diligent employee who worked in the nominated position for a significant period of time, it is not satisfied that she is the subject of an approved nomination and therefore cl 186.223 is not met.

19. 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.

20. Given its findings regarding the first named applicant, the Tribunal finds that the second, third, fourth, fifth and sixth named applicants do not meet the secondary requirements for the grant of the visa.

    DECISION

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

    Amanda Mendes Da Costa
    Member

    
    

    ATTACHMENT A

    186.223(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 Temporary Residence Transition stream; 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.