Kibria (Migration)

[2022] AATA 496

Kibria (Migration) [2022] AATA 496 (20 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammed Enamul Kibria
Ms Tahmina Begum

REPRESENTATIVE:  Mr Alasdair Dougall

CASE NUMBER:  2104170

HOME AFFAIRS REFERENCE(S):          BCC2016/2792819

MEMBER:Wan Shum

DATE:20 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 20 January 2022 at 10:36am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination – decision under review affirmed

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 1 April 2021 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the Subclass 186 (Employer Nomination Scheme) visas on 23 August 2016.

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.

4. In the present case, the first named applicant (the applicant) is seeking to satisfy the primary criteria for the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook. The applicant had been identified in an application for the approval of the nomination by Zaralexa Pty Ltd (the nominator) made on 17 August 2016.

5. The nominator’s application was not approved and consequently the delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations.

6. Both the nominator and the applicants sought review of these decisions and were represented in relation to the review by the same migration lawyer.

7. The applicant appeared before the Tribunal on 15 December 2021.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 applicant and that the nomination is approved. 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.

10. The issue in the present case is that the nomination of the position of Cook, that was made by the nominator and for which the applicant was identified, was not approved by a delegate of the Minister.

11. The Tribunal affirmed the decision of the delegate not to approve the nomination on 17 December 2021. The Tribunal wrote to the applicants regarding this on 21 December 2021 seeking their comments on or response to that information. The Tribunal also wrote to the applicants providing a copy of a non-disclosure certificate that was issued by the Department on 1 April 2021 under s 375A for their comments or response. No response has been received to either letter. The certificate appears to the Tribunal to be valid, but even if were not, the information covered by the non-disclosure certificate was not of any relevance to the reason not to approve this application. Nor was it relied upon in any way not to approve the related nomination.

12. As the nomination was not approved, cl 186.223(2) is not met.

13. 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.

    DECISION

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

    Wan Shum
    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.