Mohammed (Migration)

[2023] AATA 1741

Mohammed (Migration) [2023] AATA 1741 (11 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sohail Ahmed Mohammed

REPRESENTATIVE:  Mr Mohammad Ahmed (MARN: 0747937)

CASE NUMBER:  1930235

HOME AFFAIRS REFERENCE(S):          BCC2019/1272138

MEMBER:Amanda Mendes Da Costa

DATE:11 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 11 May 2023 at 2.17pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Internal Auditor – subject of an approved nomination – no response to s.359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2014] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 4 October 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 March 2019. 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Internal Auditor ANZSCO Code 221214.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.233 of Schedule 2 to the Regulations because he was not the subject of an approved nomination.

6. In making its decision, the Tribunal has considered the information in both the Departmental and Tribunal files.

7. The Tribunal notes that on 21 April 2023 it wrote to the applicant pursuant to s359A of the Act, inviting him to comment on or respond to information which (subject to his comments) would be the reason or part of the reason for affirming the decision under review.  This information was:

   ·On 13 March 2019, F&A CORPORATION P/L (the nominator) applied to the Department of Home Affairs (the Department) to nominate the applicant for the position of Internal Auditor (ANSCO 221214).

   ·On 4 October 2019, the application for approval of the nomination made by the nominator was refused by the Department.  The nominator applied to the Tribunal for merits review of that decision.

   ·On 4 April 2023, the Tribunal determined that it did not have jurisdiction to review the matter as the nominator withdrew their application for review.  This meant that the nomination relating to the position specified in the visa application had not been approved.

8. The Tribunal advised the applicant that this information was relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

9. The Tribunal further advised the applicant that if it relied on this information in making its decision, it may find that the position specified in his visa application was not the subject of an approved nomination and would mean that the applicant did not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review.

10. The Tribunal informed the applicant that the information should be provided (in writing) by 5 May 2023 and that if the Tribunal did not receive any comments or response within the period allowed or an extension was granted, the Tribunal may make a decision on the review without taking any further action to obtain the information.

11. The applicant has not provided the comments or response within the prescribed period and no extension has been granted.  In these circusmtnces, s359C applies and pursuant to s360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

12. The Tribunal has considered whether to proceed to decision without taking further steps to obtain the comments or response. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

13. The Tribunal has taken into account the fact that the applicant has been aware since the delegate’s decision on 4 October 2019 of the reasons for the visa application being refused over three years ago and has had the benefit of representation from a registered migration agent in order to assist with this application.

14. The Tribunal considers it reasonable to expect that the applicant’s representative, as a registered migration agent, has an understanding of the requirements of the legislation and the consequences of not providing the information requested in the invitation the Tribunal sent.  The Tribunal has also taken into account the implications of not providing the information requested in the invitation from the Tribunal were set out in the letter of 21 April 2023.

15. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that he meets the relevant criteria under cl 186.233.     

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the applicant meets the criteria in cl 186.233 of Schedule 2 to the Regulations.

    Nomination of a position

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

19. 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 reg 1.13A and reg 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.

20. Based on the evidence before it, the Tribunal finds that:

    ·On 13 March 2019, F&A CORPORATION P/L (the nominator) applied to the Department of Home Affairs (the Department) to nominate the applicant for the position of Internal Auditor (ANSCO 221214).

    ·On 4 October 2019, the application for approval of the nomination made by the nominator was refused by the Department.  The nominator applied to the Tribunal for merits review of that decision.

    ·On 4 April 2023, the Tribunal determined that it did not have jurisdiction to review the matter as the nominator withdrew their application for review.  This meant that the nomination relating to the position specified in the visa application had not been approved.

21. Therefore, cl 186.233 is not met.

22. 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.

    DECISION

23. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Amanda Mendes Da Costa
    Member

    
    

    ATTACHMENT A

    186.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); 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.