Majeed (Migration)

[2017] AATA 1632

Majeed (Migration) [2017] AATA 1632 (11 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammed Nisreen Majeed
Mrs Aishath Yusriyya
Miss Zafa Manaal Nisreen
Miss Zoya Mariyam Nisreen

CASE NUMBER:  1701630

DIBP REFERENCE(S):  BCC2016/1059516

MEMBER:Antonio Dronjic

DATE:11 September 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 11 September 2017 at 2:22pm

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – Direct Entry stream – Position of Web Developer – Nomination application refused – Subsequent nomination application pending – Tribunal adjourned proceedings – No obligation to postpone decision-making

LEGISLATION

Migration Act 1958, ss 65, 348

Migration Regulation 1994, Schedule 2, cl 186.223, r 1.13, r 5.19

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Ghori v Minister for Immigration and Citizenship [2011] FCA 759
CHEN v MIBP [2016] FCCA 2351
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

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 Immigration on 11 January 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 to the Department of Immigration for the visas on 11 March 2016. 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of a Web Developer. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the first named applicant did not meet cl.186.223 (3) of Schedule 2 to the Regulations. The related nomination application referred to in the visa application had been refused and as a result, the delegate found that the applicant did not meet cl.186.223.

6. The applicants appeared before the Tribunal on 7 June 2017 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

7. In his evidence the first named applicant confirmed that the ENS nomination application lodged by the Trustee for New Multimedia Family Trust was refused by the department on 25 October 2016. He further stated that the new ENS nomination application was lodged by the Trustee for New Multimedia Family Trust on 30 November 2016 and that the decision is still pending at the department. The latest correspondence received from the department was in May 2017. The applicants’ representative requested that the tribunal adjourned making its decision until the department makes decision on new ENS nomination application lodged by the Trustee for New Multimedia Family Trust on 30 November 2016.

8. The tribunal agreed to postpone making its decision until 15 July 2017 and the representative has provided undertaking to inform the tribunal of the outcome of the nomination application.

9. On 19 July 2017, the applicants’ representative requested further adjournment of tribunal’s decision. On 26 July 2017, the tribunal informed the applicants that it will not proceed to its decision until 31 August 2017.

10. On 28 August 2017, the applicants’ representative requested further adjournment as the applicants are still awaiting the decision from the department in relation to associated ENS nomination application. On the same day, the tribunal officer contacted the applicants’ representative and informed him of the member’s decision to proceed with the decision by 31 August 2017. As of the day of this decision, no further documents or submissions were received from the applicants.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

12. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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.

13. 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.

14. The original nomination application was assessed as an application by the Trustee for New Multimedia Family Trust and refused by the delegate on 25 October 2016. During the course of the hearing, the first named applicant confirmed that the delegate has not approved the nomination. He requested that the tribunal adjourn making its decision in this matter until the department makes decision on the new ENS nomination that was lodged by the same prospective employer on 30 November 2016.

15. I decided to adjourn making decision in this matter until 15 July 2017. Upon the applicants’ request, I granted further adjournment until 31 August 2017.

16. I considered the applicants’ request to further adjourn making the decision on the review application until the decision is made by the Department on ENS nomination application lodged with the department on 30 November 2016.

17. In doing so, I considered whether, in the circumstances of this case, the evidence that the first named applicant meets cl.186.233(3) is likely to be forthcoming, whether the first named applicant had sufficient time in which to make the necessary arrangements to meet the cl.186.233(3), previous adjournments and the consequences of proceeding to a decision for the applicants.

18. I had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 where the tribunal adjourned its decision pending the outcome of fresh business sponsorship and nomination applications being lodged with the Department. The Court found in this case that the tribunal was not required to make a decision on the review of the sponsorship application before, or simultaneously with, making a decision on the visa application refusal. The Court rejected the applicant's argument that the tribunal, by not delaying the decision on the visa application refusal, had not 'reviewed' the decision as required by s348 of the Act. It was sufficient that the tribunal review the decision concerning the refusal of sponsorship at an appropriate time in the future.

19. In coming to this conclusion the judge noted that the Business (Long Stay) visa subclass only requires that the business sponsorship and nomination be in place at the time of decision, but not necessarily earlier. If the tribunal were obliged to await the decision on all sponsorship and nomination applications relevant to an applicant, the situation could arise whereby an applicant may remain within the immigration system by continuing to seek sponsorship from different businesses, even though such applications may be continuously refused. The Court concluded there was no error of law apparent or manifest in the conduct of the tribunal. The tribunal was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled.

20. I acknowledge that the Court in the above case considered a different visa class. However, cl 186.233 (3) contains a similar requirement; that the Minister must approve the nomination before the visa is granted to the nominated person. In my view, the same principle applies in the current matter. The tribunal is under no obligation to postpone its decision-making, merely because the applicants are attempting to meet a statutory criterion found not as yet to have been fulfilled at a different forum.

21. This approach was endorsed in Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the tribunal is not required to indefinitely defer its decision making processes. Indeed, in Ghori v Minister for Immigration and Citizenship [2011] FCA 759 the Court held that it was reasonable for the tribunal, in light of that applicant’s past applications for extensions of time, to “eventually to put an end to the review process” [at 22].

22. I had regard to a recent decision of the Federal Circuit Court in CHEN v MIBP [2016] FCCA 2351, where J Smith stated [at 19]:

    ‘The question whether the tribunal’s decision not to wait for the decision on the nomination approval application was unreasonable must be determined by reference to the reasons given by the tribunal for that decision: Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [47]. However, two matters must be borne in mind in doing so: first, the tribunal is under no obligation to give reasons for such a decision: Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [32]; and secondly, a common sense and realistic approach must be taken to the reasons as a whole to see what it was the tribunal was saying: Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044 at [14] (Allsop J as his Honour then was) explaining the effect of the reasons of the majority in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 271-2.

23. I note that, according to the primary decision record submitted by the applicants with their review applications, the delegate refused to grant the visas on 11 January 2017 because related ENS nomination application referred to in the visa application had been refused. As a result, the delegate found that the applicant did not meet cl.186.223. Accordingly, the applicants have been aware of the reasons for the visas refusal for more than eight months.

24. On 7 June 2017, the tribunal decided to adjourn making its decision in this matter until 15 July 2017. Upon the applicants’ request, the tribunal granted further adjournment until 31 August 2017.

25. Taking into consideration the tribunal’s previous adjournments and the finding that the first named applicant was aware of the reasons for the delegate’s decision for more than eight  months, I am satisfied that the first named applicant had sufficient time in which to make the necessary arrangements to meet the cl.186.233(3). I note that it is uncertain if and when the ENS nomination application will be approved by the department.

26. I observe that the first named applicant may be able to re-apply for the same visa offshore once the nomination application lodged by his prospective employer is approved by the department.

27. Accordingly, in the circumstances of this particular case, the tribunal does not consider it appropriate to postpone its decision making any further.

28. As indicated above, the applicant was nominated in the position of Web Developer by The Trustee for New Multimedia Family Trust. At the time of this decision the nomination has not been approved, consequently, the applicant does not meet cl.186.233(3).

29. Given the above, the Tribunal finds that cl.186.233 is not met.

30. 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.

31. The Tribunal must also affirm the decision not to grant the second, the third and the fourth named applicants a subclass 186 visa as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary visa criteria for this subclass, or any other subclass within Class EN, in their own right.

    DECISION

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

    Antonio Dronjic
    Member