MOHAMMED (Migration)

[2020] AATA 1225

MOHAMMED (Migration) [2020] AATA 1225 (9 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Farhatulla Khan Mohammed
Mrs Sara Tabassum
Master Mohammed Rafathulla Khan
Miss Areeba Shaista
Miss Alisha Shaista

CASE NUMBER:  1732013

HOME AFFAIRS REFERENCE(S):          BCC2016/3228210

MEMBER:Jennifer Cripps Watts

DATE:9 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 9 April 2020 at 2:16pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 186.311

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 and Border Protection (the delegate) on 12 December 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 for the visas on 28 September 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 Labour Agreement stream.

4. In the present case, the primary applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Computer Network and Systems Engineer, ANZSCO code 563111, for Ahmer Arif Ismail.  

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination referred to in cl.186.233(1) was not approved by the Minister. As the applicant’s visa was refused, the secondary applicants’ visas were refused because they did not meet the secondary criteria (cl.186.311), which requires, essentially, that they are members of the family unit of, an applicant who holds a Subclass 186 visa.

6. On 18 December 2017, the applicants applied for review and provided the Tribunal with a copy of the decision.

7. The applicant appeared before the Tribunal on 8 April 2020 to give evidence and present arguments.  The hearing was conducted by phone.   In the hearing invitation, the applicants were invited to request an interpreter and declined, in the returned ‘response to hearing invitation’ received on 30 March 2020.  The applicants were assisted by their migration agent, Mr Guan Chaofeng, who also attended the hearing by phone.  From time to time answers and questions were repeated, which is not unusual in migration hearings.  The phone lines were clear and uninterrupted throughout the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The position to which the visa application relates must be the subject of an approved nomination.

10. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination referred to in cl.186.233(1) was refused. As the applicant’s visa was refused, the secondary applicants’ visas were refused because they did not meet the secondary criteria (cl.186.311), which requires essentially that they made a combined application with, and are members of the family unit of, an applicant who holds a Subclass 186 visa.

    Nomination of a position

11. 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 that identifies the visa applicant. 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.  Subclause 186.223(2) requires that the Minister has approved the nomination and it has not been subsequently withdrawn.

12. The applicant made the visa application on the basis of a nomination by Ahmer Arif Ismail for the position of Computer Network and Systems Engineer.  The delegate refused the visas because the applicant did not meet cl.186.223 because the nomination for the position to which the visa application related was not approved by the Minister; it was refused on 24 October 2017.  On 9 November 2017, Ismail, Ahmer Arif applied for review and, on 19 December 2019, the Tribunal (differently constituted) affirmed the decision not to approve the nomination.

13. Adverse information relating to the status of the nomination to which the position in his application related was provided to the applicant, by way of a s.359A letter, sent on 2 March 2020, in the following terms:

    ‘In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·     On 28 September 2016 you made an application for a Subclass 186 Employer Nomination visa on the basis of Temporary Residence Transition Stream. The nominating company you included in your visa application was Ahmer Arif Ismail.

    ·     To be granted a Subclass 186 visa, you must have a current nomination that has been approved and not withdrawn. It must be by the same company that you included in your visa application. If you do not have an approved nomination by Ahmer Arif Ismail, you cannot meet the criteria for the grant the visa.

    ·     Relevant to your case and the issue on the review, you must satisfy cl.186.223(2) of Schedule 2 to the Migration Regulations, which requires that the Minister has approved the nomination.

    ·     On 24 October 2017, the nomination relating to your Subclass 186 visa, lodged by Ahmer Arif Ismail, was refused by a delegate for the Minister for Home Affairs.

    ·     The visa of the secondary applicants was refused because they did not meet the secondary criteria, in circumstances where they lodged a combined application as a member of your family unit. The secondary criteria requires that they are a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

    ·     On 9 November 2017, Ahmer Arif Ismail made an application to the Tribunal for review of the decision not to grant their nomination. On 19 December 2019, the Tribunal (constituted differently) affirmed the decision not to approve the nomination.

    ·     In these circumstances, it appears that you are not the subject of an approved nomination by Ahmer Arif Ismail relating to your Subclass 186 visa that is the subject of this review.

    ·     On the evidence before the Tribunal, because Ahmer Arif Ismail's nomination was not approved, it appears you cannot satisfy cl.186.223(2) because you do not have an approved nomination by Ahmer Arif Ismail. If you cannot satisfy cl.186.223(2), you cannot meet the primary criteria for the grant of the visa.

    This is the information that would be the reason or a part of the reason, for affirming the decision under review.

    You are invited to give comments on or respond to the above information in writing.’

14. The applicant gave oral evidence at the hearing about his time in Australia.  He said he has been in Australia for six years and working for three and a half years as a tax paying employee.  Because of the refusal of the nomination and visa, he said he has found it very difficult to get work because of his visa conditions.  The applicant said he now has a job as a contractor.  The applicant was asked if he understood, that without an approved nomination by Ahmer Arif Ismail, he could not meet the criteria for the grant of the visa and he indicated he understood, as did his migration agent.  In response to the adverse information provided to the applicant in the Tribunal’s letter dated 2 March 2020, the applicant confirmed, in his oral evidence, at the scheduled hearing that he does not have the related approved nomination required to meet cl.186.233.

15. The applicant’s circumstances were also discussed with Mr Guan who, along with the applicant, wished the Tribunal to consider, essentially, compelling matters in the applicant’s case.  While the Tribunal has some sympathy for the situation, relating to his visa refusal, that the application finds himself in, it was explained to them that the Tribunal has no discretion to waive the requirements of cl.186.233(2) relating to the grant of a Subclass 186 visa, which requires there is an approved nomination for the position to which the visa application relates. 

16. On the evidence and for the reasons given, cl.186.223 is not met.

17. 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.

    Secondary criteria

18. These criteria are for applicants who are members of the family unit of a person who satisfies the primary criteria.  Subclause 186.311 requires that the (secondary) applicant is a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and they made a combined applicant with the primary applicant.

19. As the decision to refuse the applicant’s visa has been affirmed, the Tribunal must also affirm the decisions to refuse the visas of the secondary applicants.

    DECISION

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

    Jennifer Cripps Watts
    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.

    ……………

    186.311 

    The applicant:

    (a)  is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b)  made a combined application with the primary applicant.