Khan (Migration)

[2020] AATA 3333

Khan (Migration) [2020] AATA 3333 (1 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sajid Masood Khan

CASE NUMBER:  1807501

HOME AFFAIRS REFERENCE:               BCC2017/3582773

MEMBER:Lilly Mojsin

DATE:1 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 01 July 2020 at 10:25am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Computer Network and Systems Engineer – subject of an approved nomination – nomination application withdrawn – decision under review affirmed

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 Home Affairs on 5 March 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 September 2017. 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 review, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Computer Network and Systems Engineer (ANZSCO 263111).  This stream is designed for Subclass 457 visa holders who have worked for their employer for the past 3 years, and their employer has offered them a permanent position in the same occupation.

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 applicant was not the subject of an approved nomination, that had been made by Cab Television Pty Ltd [ABN 841 686 373 58].

6. The applicant appeared before the Tribunal on 29 June 2020 to give evidence and present arguments.

7. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. 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 to be conducted by telephone.

8. The applicant consented to the hearing being conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. In support of the application for review, the applicant provided a submission to the Tribunal by Shafiq Khan, Director of Cab Television Pty Ltd referring to AAT 1807501 [associated position nomination] and explaining reasons for not providing documents to the Department in regard to the Company’s application for approval of the associated position nomination.  He also requested that the Tribunal remit the application.

10. The applicant provided a number of documents to the Tribunal being: 

    ·Letter from training provider re: scope/requirements/schedule (dated 09/06/2015)

    ·Letter from training provider re: scope/requirements/schedule (dated 20/06/2015)

    ·Police report - card – Campsie Police Area Command – Dated 02/11/2017

    ·Letter from PRA, addressed to Tribunal undated

    ·Training invoice – Effision – 21/09/2015

    ·Training invoice – Effision – 01/12/2015

    ·Training invoice – Effision – 02/11/2015

    ·Training invoice – Effision - 04/01/2016

    ·Training invoice – Effision – 01/09/2015

    ·Training invoice – Effision – 08/10/2015

    ·Training invoice – Effision – 04/08/2015

    ·Training invoice -  Effision -  01/04/2016

    ·Training invoice – Effision – 01/03/2016

    ·Training invoice – Effision – 01/04/2016

    ·Training invoice – Effision – 02/05/2016

    ·Training invoice – Effision – 01/07/2016

    ·Training invoice – Effision – 01/06/2016

    ·Training invoice – Effision – 01/02/2016

    ·Training invoice – Effision – 01/08/2016

    ·Training invoice – Effision – 01/09/2016

    ·Training invoice – Effision – 03/01/2017

    ·Training invoice – Effision – 04/10/2016

    ·Training invoice – Effision – 02/12/2016

    ·Training invoice – Effision – 01/11/2016

    ·Training invoice – Effision – 01/03/2017

    ·Training invoice – Effision – 01/02/2017

    ·Training invoice – Effision – 01/05/2017

    ·Training invoice – Effision – 01/06/2017

    ·Training invoice – Effision –03/04/2017

    ·Covering letter from PRA (undated)

11. The Tribunal put to the applicant, pursuant to s.359AA, information that was the reason or part of the reason for affirming the decision under review. The Tribunal explained that the applicant could seek an adjournment to respond or respond in writing or respond immediately. The Tribunal put to the applicant that Shafiq Khan on behalf of Cab television wrote to the Tribunal[1] on 8 May 2020 by email stating “I would just like to request to withdraw the above-mentioned file: 1804247”.  Shafiq Khan also provided a signed withdrawal form with that email. The Tribunal explained that it had accepted the withdrawal, therefore the nomination made by Cab Television has been withdrawn. The Tribunal indicated to the applicant that this information was relevant because without an approved nomination the applicant was ineligible to meet cl.187.233 and satisfy the primary criteria for the grant of the visa. The applicant responded that he was not aware, he said that they did not tell him. He has not been working for the employer since December 2019. The Tribunal noted that this was prior to COVID19. The applicant said that he is trying to survive now doing odd jobs.

    [1] AAT 1804247

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant applied for the visa on the basis of his nomination by Cab Television Pty Ltd [ABN 841 686 373 58] in the nominated position of Computer Network and Systems Engineer (ANZSCO 263111).

13. Clause 186.223 as applicable in this review 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 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.

15. The Tribunal [1807501] accepted the withdrawal of the application to approve the nomination of the application by Cab Television Pty Ltd for the occupation of Computer Network and Systems Engineer (ANZSCO 263111) on 18 May 2020. 

16. The Director of Cab Television Pty Ltd by a submission, submitted by the applicant, requested that the Tribunal remit the application for reconsideration. The Tribunal has considered the documents submitted by the applicant. The documents all relate to issues relevant to the Company’s application[2] for approval of the associated position nomination. 

    [2] AAT 1807501

17. The issue before the Tribunal is whether the position to which the application relates is the subject of an approval of a nomination in the Temporary Residence Transition stream that identifies the applicant. The receipts relate to training, a police receipt and as they are not relevant to the issue before the Tribunal, the Tribunal places no weight on those documents.

18. As the nomination application of Cab Television Pty Ltd, upon which the application was dependent, was refused by the Department and the review application made to the Tribunal was withdrawn by Cab Television Pty Ltd, the applicant is not the subject of an approved nomination for the position of Computer Network and Systems Engineer.

19. Therefore, cl.186.223 (2) is not met.

20. 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.

    DECISION

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

    Lilly Mojsin
    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.