Khan (Migration)

[2019] AATA 1295

Khan (Migration) [2019] AATA 1295 (14 January 2019)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jia Imran Hameed Khan
Mrs Robina Akhtar

CASE NUMBER:  1709881

DIBP REFERENCE(S):  BCC2016/3056153

MEMBER:Katie Malyon

DATE OF DECISION:  14 January 2019

DATE CORRIGENDUM

SIGNED:17 January 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

In error:  ‘2018’ – at Date of Decision (front page of decision record)

Should correctly read: ‘2019’ - at Date of Decision (front page of decision record)

Katie Malyon
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jia Imran Hameed Khan
Mrs Robina Akhtar

CASE NUMBER:  1709881

HOME AFFAIRS REFERENCE(S):          BCC2016/3056153

MEMBER:Katie Malyon

DATE:14 January 2018

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(2) of Schedule 2 to the Regulations.

Statement made on 14 January 2019 at 1:00 pm

CATCHWORDS
MIGRATION – Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cafe or Restaurant Manager – nomination refused – nomination approved – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 376
Migration Regulations 1994 (Cth), r 5.19, 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 2 May 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 14 September 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 3 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 Pakistan national Mr Jia Imran Hameed Khan, is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Cafe or Restaurant Manager with his employer and nominator, sole trader Zahid Ali T/A Zahid Restaurant.

5. The delegate refused to grant the visas on the basis Mr Khan did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination application made by Zahid Ali T/A Zahid Restaurant was refused by the Department on 7 March 2017.  Zahid Ali applied to the Tribunal for review of the delegate’s decision to refuse the nomination application.  A copy of the delegate’s decision to refuse the applicants’ visa application was provided to the Tribunal.   

6. The Tribunal conducted a review of the decision to refuse the nomination application made by Zahid Ali T/A Zahid Restaurant (AAT File 1705951) as a combined hearing with its review of refusal of the applicants’ Subclass 186 visa application.  Mr Ali appeared before the Tribunal on 3 January 2019 to give evidence and present arguments on behalf of his business.  The Tribunal also received evidence from Mr Khan.  Both Mr Ali and Mr Khan were represented in relation to their respective review by the same registered migration agent.  The representative also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether there is an approved nomination in respect of the first named applicant, Mr Khan.

   Information provided to the Department in confidence

9. At the outset, the Tribunal notes that a Certificate has been issued by the Department pursuant to s.376 of the Act in relation to certain information in the Department's file. The effect of a s.376 Certificate is that the Tribunal has a discretion to disclose the gist of information to an applicant in circumstances where the Department has certified that disclosure would be contrary to the public interest for the reasons specified in the Certificate. Having considered the information the subject of the s.376 Certificate and details regarding the delegate who signed the Certificate, the Tribunal is satisfied that it is a valid Certificate. The Certificate explains why disclosure of the information would not be in the public interest.

10. In the circumstances of this case, the Department issued the Certificate regarding a single confidential online anonymous tip-off dated 29 March 2017 in relation to “one girl JAI KAHN” identified in the tipoff as a 457 visa holder sponsored by Zahid Ali T/A Zahid Restaurant who is in the process of applying for permanent residence (emphasis added).  The tip-off states that “she never worked in (the) restaurant” (emphasis added). 

11. Relevantly, the Tribunal notes that the tip-off incorrectly states that the first named applicant - Jia Imran Hameed Khan - is female.  This is clearly not a typographical error or oversight as the author of the anonymous tip-off expressly refers to ‘one girl’ and also used the female pronoun ’she’.  Further, during the course of the Tribunal’s combined hearing on 3 January 2019, it took independent evidence from Mr Ali as well as nominee Mr Khan in relation to Mr Khan’s duties as Cafe or Restaurant Manager at Zahid Restaurant, the size and hours of operation of the business and staffing arrangements.  The Tribunal found both Mr Ali and Mr Khan to be credible witnesses.  Mr Khan also provided the Tribunal, at its request, with his personal bank statements confirming payment of his wages from Mr Ali’s NetBank account, PAYG summaries, copies of ATO Assessment Notices and his superannuation account. 

12. On the basis that, first, the confidential anonymous tip-off is clearly false because it refers to a female named Jai Khan when the first named applicant - Jia Imran Hameed Khan - is male and, second, on the independent evidence provided by Mr Ali and Mr Khan to the Tribunal at the hearing, the Tribunal has had no regard whatsoever to the information in the s.376 Certificate.

    Is there an approved nomination?

13. On 14 January 2019, the Tribunal approved the nomination application made by Zahid Ali T/A Zahid Restaurant in respect of the position of Cafe or Restaurant Manager for nominee Mr Khan under r.5.19(3) of the Regulations. Accordingly, cl.186.223(2) of Schedule 2 to the Regulations is met.

14. Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

15. The second named applicant, Mr Khan’s wife Robina Akhtar, applied for the visa on the basis of being a member of the family unit of the first named applicant Mr Khan.  Accordingly, her application will be determined by reference to the outcome of Mr Khan’s application on remittal to the Department for reconsideration.

    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(2) of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member

    ATTACHMENT - Extract from the igration Regulations 1994

    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.

    oOOo