Khandaker (Migration)

Khandaker (Migration) [2022] AATA 3267 (14 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Nazmul Khandaker
Master Ahnaf KHANDAKER
Mrs Arfin Naher ANUPOMA
Master Affan Khandaker
CASE NUMBER:  1827497
HOME AFFAIRS REFERENCE(S):          BCC2016/3961432
MEMBER:Amanda Mendes Da Costa
DATE:14 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 14 January 2022 at 12.20pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Cook – nomination refused–applicant is not the subject of an approved nomination– tribunal affirmed nomination decision – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.13, Schedule 2, cl 186.223
CASES
Hasran v MIAC [2010] FCAFC 40
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 September 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 24 November 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
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 Cook ANZSCO 351411.
The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.
The applicants appeared before the Tribunal on 14 October 2021 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a telephone and the applicant was offered the opportunity to provide the Tribunal with further documentation and submissions following the hearing.
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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent.
On 26 August 2021 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting him to comment on or respond to information which the Tribunal considered if accepted and relied upon by the Tribunal would be the reason or part of the reason for it affirming the decision made by the Department to refuse to grant the applicant a subclass 186 visa. That information was that on 29 March 2021 the Tribunal affirmed the decision to refuse the nomination application by Medioz Enterprises Pty Ltd trading as ‘Food City’ (the nominator) in respect of the applicant. This meant that the applicant was not be subject of an approved nomination
The Tribunal explained that the above information was relevant to its review because it was a requirement for the grant of the visa that the position specified in his visa application was the subject of an approved nomination.
The Tribunal explained that if it relied on this information in making its decision, it may find that the position specified in the visa application was not the subject of an approved nomination. This would mean that the applicant did not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision under review.
The Tribunal advised the applicant that any comments or response should be provided (in writing) by 9 September 2021.
On 8 September 2021 the applicants’ registered migration agent requested an extension of time for the applicant to provide a response to the Tribunal’s s.359A invitation. The Tribunal acceded to this request and gave the applicants until 30 September 2021 to provide their comments or response.
On 29 September 2021 the applicants provided the following comments and response:
·The applicant was working for the nominator and applied for a Subclass 186 visa through the company.
·The applicant submitted all the papers from his side and didn’t understand why he was not granted a visa. It was not his fault that his visa had not been granted.
·The applicant has been living in Australia for a long time and has made his career here.
·It would be really difficult for him to return to Bangladesh or any other country.
·Given the effect of the Covid-19 pandemic everywhere is dangerous for the applicant and his family, particularly his young children.
·The applicant is trying to move to another visa and is still working in the hospitality industry.
·The applicant and his wife have a newborn child and will need to apply for a passport for this child before the family can leave Australia.
·This will take time given the current lockdown and the costs involved.
·The applicant requests the Tribunal postpone its decision on the review application whilst he attempts to obtain another visa.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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
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.
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.
During the course of the hearing, the Tribunal discussed the decision by a delegate of the Minister to refuse the nomination application by the nominator and the subsequent decision by the Tribunal (by a differently constituted Member) to affirm that decision. The Tribunal explained to the applicant that this meant he was not the subject of an approved nomination, as required by cl.186.223.
The applicant told the Tribunal that he had worked in the nominated occupation for approximately five years until his visa application was refused (September 2018). He subsequently gained employment as a Cook and was currently employed on a full-time basis as a Chef. The applicant explained that he had submitted all the required documentation in support of his visa application and could not understand why it had been refused. He thought it was perhaps due to problems with the nominator’s file although his previous employer had told him that it could provide further documentation to support his visa application which is why he lodged an application for review with the Tribunal.
The applicant said that it would be very difficult for him to return to Bangladesh (his country of nationality) after 14 years in Australia. He would be required to establish career there without any work experience there. He was also concerned about the effect on his children in relocating to Bangladesh and the dangers in leaving Australia during the Covid-19 pandemic. The applicant and his wife have three children, aged seven years, three years and two months.
The applicant requested that the Tribunal postpone its decision in relation to the review application, to enable him to obtain a further sponsor and/or to make an application for another visa. He explained that although it was difficult for him to give the Tribunal an exact time period for this postponement, he estimated he would require an additional four to five months.
The Tribunal has considered the applicant’s request for a postponement of its decision on the review application. Although it acknowledges his intention to make an application for another visa, there is no evidence before the Tribunal that he has obtained a subsequent notification.
The Tribunal has 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 Tribunal’s decision in the matter is further postponed.
The Tribunal accepts that the applicant was employed by the nominator in the nominated occupation and that since leaving that employment, he has gained further employment as a Cook and latterly as a Chef. It also acknowledges that will be difficult for the applicant and his family to relocate to Bangladesh or another country after several years in Australia.
However, based on the evidence before it, the Tribunal accepts that the nomination application made by the nominator in respect of the applicant was refused by a delegate of the Minister. The Tribunal is further satisfied that the nominator sought a review of that decision, but on 29 March 2021 this Tribunal affirmed the delegate’s decision.
Accordingly, the Tribunal is not satisfied that the position specified in the applicant’s visa application was the subject of an approved nomination.
Therefore, cl 186.223 is not met.
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.
Given the Tribunal has not found that the first named applicant satisfies the primary criteria for the grant of a Subclass 186 visa, it does not consider that the applications of the second, third and fourth named applicants should be reconsidered as they are not members of the family unit of a person who has satisfied the primary criteria for the grant of the visa.
DECISION
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 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.

[2022] AATA 3267

14 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal