Khurram (Migration)

[2019] AATA 4152

Khurram (Migration) [2019] AATA 4152 (12 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Uzma Khurram
Mr Khurram Saghir
Mr Ayaan Khurram Saghir
Mr Ahmed Khurram

CASE NUMBER:  1711508

HOME AFFAIRS REFERENCE(S):           BCC2016/2584225

MEMBER:Katie Malyon

DATE:12 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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.

The Tribunal has no jurisdiction in relation to the second named applicant.

Statement made on 12 September 2019 at 2:12 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Hair or Beauty Salon Manager – subject of an approved nomination – nomination application now approved by Tribunal – decision under review remitted

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 19 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 4 August 2016.  At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. 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, Pakistani national Mrs Uzma Khurram, is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Hair or Beauty Salon Manager ANZSCO 142114.

5. The delegate refused to grant the visas on the basis Mrs Khurram did not meet cl.186.223(2) Schedule 2 to the Regulations because she was not the subject of an approved nomination by her nominator and current employer, Adere Pty Ltd (the Company).  There was no approved nomination because, on 14 March 2017, the Department refused the nomination application made by the Company.

6. On 22 October 2018, The Tribunal held a combined hearing of the refusal of the applicants’ Subclass 186 visa applications together with the refusal of the Company’s nomination application (File No. 1706481).  The Managing Director of the Company, Mr Baber Rana, appeared before the Tribunal on behalf of the Company.  In addition, Mrs Khurram and the fourth named applicant appeared before the Tribunal to give evidence and present arguments.  The Tribunal also took evidence from Mrs Khurram’s eldest son, Australian permanent resident Mohammed Khurram.  The applicants were represented in relation to the review by their registered migration agent, who also attended the hearing by way of videoconference.  Following the hearing, representative’s registration with the Office of Migration Agents Registration Authority lapsed and so the applicants requested all correspondence be sent to Mrs Khurram directly.

7. At the first hearing, the Tribunal took independent oral evidence from Mrs Khurram.  At the outset, it observed that it had no jurisdiction in relation to her husband, the second named applicant Mr Khurram Saghir, as he was offshore at the time the review application was lodged with the Tribunal.  Mrs Khurram acknowledged the Tribunal’s comments in this regard.  She also acknowledged the Tribunal’s comment that the outcome of her Subclass 186 visa application is entirely dependent on the Tribunal’s decision regarding the Company’s nomination.

8. A second combined hearing was held on 6 August 2019.  Mr Rana and Mrs Khurram appeared before the Tribunal to give evidence at the second hearing.  The Tribunal also took evidence from the third named applicant, Mrs Khurram’s youngest son Ayaan Khurram Saghir, as well as her eldest son Mohammad Khurram and her brother Imtiaz Hameed Chaudry. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether Mrs Khurram meets the requirements of cl.186.223(2) of Schedule 2 to the Regulations.

    Nomination of a position

11. 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.

12. 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.

13. On 12 September 2019, the Tribunal made a decision to set aside the delegate’s decision of 14 March 2017 to refuse the Company’s nomination and, instead, it approved the nomination made under r.5.19(3) of the Regulations in respect of the nominated position of Hair or Beauty Salon Manager ANZSCO142114 for the nominee Mrs Khurram. Accordingly, cl.186.223(2) of Schedule 2 to the Regulations is now met by Mrs Khurram.

14. Given this finding, the appropriate course is to remit Mrs Khurram’s Subclass 186 visa application to the Minister to consider the remaining criteria for the grant of the visa.

15. The third and fourth named applicants, Mr Ayaan Khurram Saghir and Mr Ahmed Khurram, applied for their Subclass 186 visas on the basis of being a member of the family unit of Mrs Khurram.  As such, their applications will be determined by reference to the outcome of Mrs Khurram’s application on remittal to the Department for reconsideration. 

16. As discussed with Mrs Khurram during the first hearing, the Tribunal has no jurisdiction in relation to the second named applicant, her husband Mr Khurram Saghir, as he was offshore at the time the review application was lodged with the Tribunal.   

    DECISION

17. The Tribunal remits the applications 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) Schedule 2 to the Regulations.

    The Tribunal has no jurisdiction in relation to the second named applicant.

    
    
    

    Katie Malyon

    
    Member

    ATTACHMENT - Extracts from the Migration 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