Kibrea (Migration)

[2023] AATA 905

Kibrea (Migration) [2023] AATA 905 (31 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kadari Kibrea
Mrs Humaira Nargis

CASE NUMBER:  1924340

HOME AFFAIRS REFERENCE(S):          BCC2018/409380

MEMBER:Sean Baker

DATE:31 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 31 March 2023 at 12:06pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – subject of an approved nomination – 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 15 August 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 24 January 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 (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 Direct Entry stream.

4. The delegate refused to grant the visas because the applicant did not meet cl 186.233 of Schedule 2 to the Regulations because the nomination associated with the visa application had not been approved.

5. The applicants appeared before the Tribunal on 30 March 2023 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether there is an approved nomination.

   Nomination of a position

8. Clause 186.233 as applicable in this case 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.

9. 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 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.

10. Prior to the hearing I sent the applicant a letter pursuant to s. 359A. This letter explained that there was information that was adverse, or potentially adverse. The letter sent out that this information was that:

    ·     Your visa application was refused by the Department on 15 August 2019, because the nomination mentioned in cl.186.233 in respect of the first named applicant had been refused; and

    ·     On 7 October 2022, the nomination lodged by STEVEN MEDAK ATF MEDAK TRUST, being the nomination referred to in paragraph 186.233, was finalised as no Tribunal reviewable decision by the Tribunal.

11. The letter explained that the relevance of this information was that there was a requirement that the nomination has been approved, and that the nomination needed to be the nomination in relation to the position set out in the application and that the requirement cannot be satisfied with a later nomination, and that the application related to the direct entry stream meaning the applicant could not satisfy another stream. The letter went on to explain that if the primary applicant did not satisfy the primary criteria, the secondary applicant could not satisfy the secondary criteria. The letter explained that the consequence of this information would be that this would be the reason or part of the reason to affirm the decision under review.

12. The applicants responded to the letter, providing information about current and previous employment of the primary applicant as well as other required documents for the first and second applicants.

13. At hearing I explained the above to the applicants. The first named applicant responded and explained that he had been working but that the business had had to close during the pandemic. He explained that they had returned to Bangladesh but had been successful in gaining a 491 visa in relation to his current employment. They were in Australia on that visa but wished to seek the 186 visa so that they did not have to wait as long for permanent residency.

14. I then raised with the applicant the purported s. 376 certification on the file (Tf. Doc Id 6644256). I explained that I accepted that this certificate was validly made in that it identified a public interest reason that information provided in confidence should be treated with care, but that after considering the information I had decided it appropriate to disclose the information to the applicant pursuant to s. 376(3)(b). I then proceeded to put the information to the applicant pursuant to s. 359AA. However, I noted to the applicant before doing so that:

15. I did not generally place a great deal of weight on dob-ins, because I could not ascertain the motivation, identity of the source and therefore truthfulness of the information, and more importantly:

16. My initial assessment was that this information was not relevant to the issue dispositive to the review.

17. Nevertheless, I explained to the applicants I was required to put the certification to them and the information for their response or comment.

18. I then put the information to the applicant. I explained that the dob-in included details about the primary applicant, that it alleged that he had been an accounting student who had done poorly and questioned how he was able to work in the hospitality industry. It alleged that his prior work he had paid the owner for paperwork and he had tried to buy sponsorship from another workplace. It alleged that he and his wife had breached their visa conditions with overwork and they had done so many other illegal things to get PR in Australia.

19. I explained that the relevance may be that if accepted I may place no weight on the documents and evidence he had provided to evidence his satisfaction of the visa criteria and I explained the consequence.

20. The applicants elected to respond immediately. The applicant said that this information was completely wrong and could be easily checked by speaking with the previous business owners. He noted that the concerns about his skills and how they fitted with his nominated position were inconsistent with his gaining the skills assessment, independent of what was alleged.

21. I noted to the applicant that I was entirely satisfied with his explanations and that I placed no weight on the allegations contained in the dob-in, but I also noted that as I had said before, these allegations did not appear directly relevant to the issue in the case. The applicants indicated they understood.

22. Having carefully considered the information before me I find that the nomination made in relation to this application was refused by the Department, and subsequently finalised by the Tribunal in October 2022 as no tribunal reviewable decision. As such there is no approved nomination in relation to this application. The applicant therefore cannot satisfy cl. 186.233(3). Therefore, cl 186.233 is not met.

23. 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.

24. The secondary applicant is not a member of the family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa and there is no information before me to indicate that they meet the primary criteria. Therefore the decision in relation to their application must also be affirmed.

    DECISION

25. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Sean Baker
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.