Khanji (Migration)

[2020] AATA 3355

Khanji (Migration) [2020] AATA 3355 (26 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mohammedtariq Mohammedyusuf Khanji

CASE NUMBER:  1926704

HOME AFFAIRS REFERENCE:               BCC2018/5132537

MEMBER:Lilly Mojsin

DATE:26 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 26 June 2020 at 9.30 am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Transport Company Manager – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

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 4 September 2019 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 18 November 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Transport Company Manager [ANZSCO 149413].

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination, that had been made by Tyk Group Pty Ltd [ABN 84 605 284 857].

6. The hearing was held during the COVID-19 pandemic.  The Tribunal advised the applicant that it would hold a telephone hearing. The applicant responded advising the Tribunal that he wished a face to face hearing as he had a distraction disorder. The Tribunal offered the applicant a video hearing. The applicant responded stating that he was not tech savvy and he is not comfortable with a telephonic or virtual interview.

7. 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.

8. 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.

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

10. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

11. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. 

12. The applicant provided a number of documents to the Tribunal, prior to the hearing, included:

    ·    Letter

    ·    Annual Leave Balances_NES.

    ·    Employment Contract.

    ·    Market Rate - Fleet-Manager.

    ·    Market Rate - Salary Report - Fleet Manager.

    ·    Market Rate - Transport-Manager.

    ·    Position Description.

    ·    Registration or Licensing Not Needed.

    ·    Salary Paid Business Account.

    ·    Salary Payslips.

    ·    Salary Received Personal Account.

    ·    OHS Related.

    ·    Developing Roster.

    ·    Driver Authority Check.

    ·    Driver Worksheets.

    ·    Insurance Purchase Renewals.

    ·    Maintenance Repair Bills Parts Equipment.

    ·    Operational Statements.

    ·    Periodic Inspection and Service.

    ·    Plates Lease.

    ·    Quarterly Inspection.

    ·    Rates Card.

    ·    Registration Renewals.

    ·    RMS Audit.

    ·    Tasks - Vehicle Finance and Purchase.

    ·    Tasks - Vehicle Inspection Schedule.

    ·    Vehicle Rental Agreement.

13. The Tribunal asked the applicant if the documents, all dated in 2015, 2016 and 2017 were provided to the Department, by the nominee company, in relation to the application for approval of the nomination. The applicant confirmed that he was the Director of the nominee company Tyk Group Pty Ltd and its employee.  The applicant said that the company is still on the list but position of Fleet Manager has been removed.

14. The Tribunal put to the applicant that the Department decision, attached to his application for review, advised that the nomination made by Tyk Group Pty Ltd had been refused. The applicant disagreed. He said he understands but when he applied for the visa the nomination for Transport Company Manager was there.

15. The Tribunal explained that without an approved nomination, the applicant was ineligible to meet cl.186.233 and satisfy the primary criteria for the grant of the visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. Clause 186.233 as applicable in this review is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

17. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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.

18. The applicant applied for the visa on the basis of his nomination by Tyk Group Pty Ltd for the position of Transport Company Manager [ANZSCO 149413].  The applicant provided documents to the Tribunal.  These documents were not relevant to the application before the Tribunal as they were business documents of Tyk Group Pty Ltd. Therefore the Tribunal places no weight on these documents.

19. The applicant acknowledged that the nomination made by Tyk Group Pty Ltd for the nominated position of Transport Company Manager, had been refused. The Tribunal is satisfied the applicant is not the subject of an approved nomination.

20. Therefore, cl.187.233 is not met.

21. 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.

    DECISION

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

    Lilly Mojsin
    Member

    
    

    ATTACHMENT A

    186.233(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 Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.