Malik (Migration)

[2019] AATA 6326

Malik (Migration) [2019] AATA 6326 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Shahid Malik
Ms Rabia Shahid
Mr Muhammad Maaz Malik
Ms Abeeha Malik

CASE NUMBER:  1925297

HOME AFFAIRS REFERENCE(S):          BCC2017/4031903

MEMBER:Alan McMurran

DATE:18 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2019 at 4:47pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Baker – subject of an approved nomination – nomination refused – 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 lodged 9 September 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 19 August 2019 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 31 October 2017. 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 Labour 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 Baker (ANZSCO 351111).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations because the delegate found that there was no approved nomination in respect of the applicant which had been granted in favour of the sponsor, The Trustee for Selvaraj Family Trust.

6. The applicants appeared before the Tribunal on17 December 2019 in a multi-application hearing list to give evidence and present arguments. The Tribunal received oral evidence from the primary review applicant.

7. The applicants were represented in relation to the review by Mohammed Ahmed of Aus-Can Immigration Services. The representative did not appear for the hearing.

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

   Background

9. The applicants are citizens of the Islamic Republic of Pakistan.

10. The applicant said he had been working as a baker for a franchise, Bakers Delite, at North Ryde in Sydney. He said that he had commenced work for the franchise at the same location in about 2014, under a previous owner. He said the current owner had offered to sponsor him in about 2016 and subsequently made a nomination application in August 2017.

11. The applicant explained that the nomination process had taken a long time during which he heard very little, and that it was his migration agent who had provided all information to the Department, including details of the franchise and the franchise agreement. He said he had heard nothing for approximately 21 months.

12. He said that by the time the nomination was considered, it was refused because the franchised business was no longer an approved sponsorship business and could not nominate him successfully. He said in the period while waiting, he had continued to work and not sought another sponsorship and only discovered his situation when notified by the Department when he received a natural justice letter in July 2019. The applicant said he elected to continue with his visa application regardless, and which application was refused by the Department on 19 August 2019.

13. On 22 November 2019 the Tribunal requested the applicant in its hearing invitation to provide any further documents or information the applicant intended to rely upon before the hearing.

14. On 28 November 2019, the Tribunal sent a letter under section 359A of the Act and providing particulars that the nomination had been refused on 16 July 2019 and that current information suggests there is no approved nomination and the decision to refuse a nomination was not the subject of review.

15. On 9 December 2019, the applicant’s representative responded to the Tribunal by email stating:

    “Thanks for your email. The applicant wishes to advise that though his employer did not lodge nomination review he seeks review for his case and wishes to come for hearing and present his point of view and arguments. According to him, nomination refusal decision and visit refusal decision is unfair in many ways.

    He hopes to get the opportunity to come and present his arguments in the hearing.”

16. That opportunity came with the hearing on 17 December 2019. No further or other information was provided by the applicant, other than a discussion which took place at the Tribunal on the hearing day.

17. The Tribunal explained to the applicant that it was a condition for the grant of the visa that an approved nomination decision had been taken by the Minister, or that a refusal by the Department was the subject of a current review which had not been determined. The Tribunal explained that in the absence of an approved nomination or review of a refused nomination, the visa application could not succeed. The applicant indicated that he understood, but wanted the Tribunal to understand his history.

18. He explained that he had been waiting a long time for this review and during which period the nomination failed because the occupation under the franchise was no longer an approved business model for the particular visa stream.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether the applicant is subject to a nomination which the Minister has approved.

20. The Tribunal has for consideration its case file together with electronic material copied from the Department case file, BCC 2017/4031903. It also has available the oral discussion with the primary review applicant at the hearing.

    Nomination of a position

21. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

22. 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.

23. The Tribunal has noted the applicant’s complaints as to the time taken for consideration of the nomination and the reason that it failed. The Tribunal is also mindful that the applicant was not kept aware of the nomination outcome so as to enable him to seek alternative sponsorship or other options that may have been open to him.

24. The Tribunal finds that on 16 July 2019, the Minister in the guise of the Department delegate refused the nomination application. The reasons for that refusal and the Department’s file on the nomination are not before the Tribunal. In this review, the Tribunal is not able to revisit that nomination refusal decision.

25. The Tribunal is also satisfied that there is no application for review by the sponsor, or any extension of time sought to lodge an application for review by the sponsor.

26. The Tribunal notes the evidence of the applicant that the applicant is not the subject of another sponsorship or employment agreement or any application for review of a refusal of a nomination application.

27. The Tribunal further notes that the primary visa applicant has however lodged an application for a Subclass 489 Skilled Regional (Provisional) visa, which is under consideration. Details of that application or the Department’s information in that regard were not available to the Tribunal and were not supplied either by the applicant or the representative.

28. The Tribunal finds at the date of decision that the applicant is not the subject of a nomination the Minister has approved and this Tribunal is not required to consider any other or remaining criteria for the Subclass 186 visa.

29. The Tribunal finds therefore, cl.186.233 (3) is not met.

30. 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.

    Secondary applicants

31. The Tribunal finds that the secondary applicants are dependent family members of the primary review applicant.

32. As the primary review applicant is not able to satisfy the criteria in cl.186.233, the secondary applicants who are dependent upon the success of the primary review applicant cannot succeed and their applications must also fail.

    DECISION

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

    Alan McMurran
    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.