Malek (Migration)

[2023] AATA 3864

Malek (Migration) [2023] AATA 3864 (25 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammadnadim Abidhusen Malek
Mrs Saimakhatun Mohmmadnadim Malek
Master Mahammadarsalan Mohmmadnadim Malek

REPRESENTATIVE:  Mr Shoaib Vahora (MARN: 0848555)

CASE NUMBER:  2003419

HOME AFFAIRS REFERENCE(S):          BCC2019/2513903

MEMBER:Peter Newton SC

DATE AND TIME OF

ORAL DECISION AND REASONS:         25 October 2023 at 3:13 pm (NSW time)

DATE OF WRITTEN RECORD:                14 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application 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: - clause 186.223 of Schedule 2 to the Regulations.

Statement made on 14 November 2023 at 12:08pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Fleet Manager – nomination approved upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; r 5.19

APPLICATION FOR REVIEW

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs on 3 February 2020 (Department’s Decision), refusing to grant the applicants Employer Nomination (Permanent) (Class EN) visas under section 65 of the Migration Act 1958 (Cth) (Act).  The applicants applied for the visas on 13 May 2019.  At the time of application, class EN contained one subclass: subclass 186 (Employer Nominations Scheme).

2. At the hearing on 25 October 2023 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The criteria for the grant of a Subclass 186 visa set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).  The primary criteria must be satisfied by at least one applicant.  Other members of the family unit, 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 for 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 (who unless indicated otherwise I will refer to in this statement of decision and reasons as the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Fleet Manager.

4. The delegate refused to grant the visas because the applicant did not meet clause 186.223, so far as the applicant was concerned, and clause 186.311 so far as the dependent visa applicants are concerned because the Department had had refused the nomination lodged by All Sydney City Towing Pty Ltd on 19 December 2019. As a result, the applicant did not satisfy the requirements of clause 186.223 and the dependent visa applicants did not satisfy the requirements of clause 186.311.

5. The applicant appeared before the Tribunal on 25 October 2023 to give evidence and present arguments. The application for review of the Department's Decision was heard concurrently with the application by All Sydney City Towing Pty Ltd to review of the decision made by the Department rejecting its application for approval of the nomination of a position under regulation 5.19 of the Regulations. Evidence on one application was evidence in the other.

6. Mr Manva, one of the directors of All Sydney City Towing Pty Ltd appeared at the hearing and gave evidence.  The applicants were ably represented by Mr Vahora.  At the time of the hearing the applicants comprise Mr Malek, who is the nominated employee, his wife and their two children.  Mr Malek's wife and two children are secondary applicants.  Whilst they did not attend the hearing, the Tribunal is satisfied they are all present in Australia.  They did not attend the hearing because two of the dependent visa applicants are children.  The eldest child is at school.  The youngest child is one year old, and the primary review applicant's wife and mother is required to care for him as well as drop off and pick up their other child from school.

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

8. The issue in the present case is whether there is an approved nomination for the applicant in the nominated position of Fleet Manager. As stated, the application by All Sydney City Towing Pty Ltd to the Tribunal to review the decision made by the Department of Home Affairs rejecting its application for approval of the nomination, was heard concurrently with this application. Evidence on one application was evidence on the other.

9. Before delivering this decision, the Tribunal made a decision on the application by All Sydney City Towing Pty Ltd. On that application, the Tribunal set aside the decision under review and substituted a decision approving the nomination. That decision or approval has not subsequently been withdrawn. In that decision, the Tribunal found that there was adverse information known to Immigration about the nominated employer. That comprised the recording in the records maintained by the ASIC of the appointment of an external administrator to the company, which has subsequently been removed. The Tribunal found that in the circumstances in which that recording was made and removed, it was reasonable to disregard that information. The Tribunal is satisfied that the nominated position is still available to the applicant. 

10. The evidence establishes that Mr Malek has been employed in the nominated position since 2017. The Tribunal was provided with the applicant's current employment contract between him and his nominating employer dated 10 May 2019. Mr Malek and Mr Manva gave evidence to the effect that the nominated position is still available to the applicant. The applicant's current employment contract provides that upon the grant of a 186 visa, the nominating employer will employ Mr Manva for at least two years with the right to extend the employment beyond the two years.

11. The application for approval of the nomination was lodged with the Department on 13 May 2019 and refused on 19 December 2019.  The application for permanent employer sponsored or nominated visa by the applicants was lodged with the Department on 13 May 2019 and refused on 3 February 2020.  On 9 January 2020, the nominating employer lodged an application with the Tribunal to review the Department's decision refusing its application for approval of the nomination.  On 21 February 2020, the applicants in this case lodged an application to review the Department's Decision rejecting their application for the visa. 

12. As stated, both applications were heard together. Prior to delivering this decision, the Tribunal delivered its decision on the application by the nominating employer. The Tribunal set aside the decision under review and substituting its decision, approving the nomination. In these circumstances, the Tribunal is satisfied that the visa application was made no more than six months after the nomination of the position was approved. Accordingly, the Tribunal is satisfied that clause 186.223 is met.

13. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. 

    DECISION

14. The Tribunal remits the application 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: - clause 186.223 of Schedule 2 to the Regulations.

    Peter Newton SC
    Member