Mozibur Rahman (Migration)

[2018] AATA 1153

Mozibur Rahman (Migration) [2018] AATA 1153 (23 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammad Mozibur Rahman
Mrs Taslima Khan
Mr Tamzid Ahmed Dipto
Ms Fatema Moshio Moumita

CASE NUMBER:  1705852

DIBP REFERENCE(S):  BCC2016/1750519

MEMBER:Hugh Sanderson

DATE:23 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 23 March 2018 at 9:11am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Nomination refusal – Not subject of an approved nomination

LEGISLATION
Migration Act 1958, s 65, 359A
Migration Regulations 1994, r 5.19, Schedule 2 cl 186.223

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 on 8 March 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 16 May 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 Temporary Residence Transition stream, to work in the nominated position of Importer or Exporter. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination application of the applicant sponsor, AFK International Pty Ltd, had been refused by the Department and therefore the applicant was not subject of an approved nomination.

   Background

6. The applicant applied for the visa on the basis of being employed as an importer or exporter for his sponsor, AFK International Pty Ltd. The second named visa applicants are his wife and children and have applied for the visas on the basis of being members of the family unit of the applicant.

7. The applicant’s sponsor was refused the approval of their nomination application by the Department. On the basis that the nomination was refused, the Department refused the applicant the grant of his visa as he did not meet the criteria in cl.186.223(2). Both the applicant and his sponsor applied to the Tribunal for a review of those decisions. The sponsor’s application is subject to a separate decision (case number 1702399).

8. The applicant’s sponsor was requested to provide current and updated information addressing the criteria for the granting of the nomination approval. The sponsor did not respond to the Tribunal within the time they were required. After this time expired, further information was provided. After taking into account this information, the Tribunal issued a decision affirming the Department’s decision to refuse the nomination application.

9. The Tribunal wrote to the applicant on 7 March 2018 pursuant to s.359A of the Act inviting him to comment on or respond to information which would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review. That information was that the review application by the sponsor had resulted in the Department’s decision refusing the nomination application being affirmed by the Tribunal and was now finalised. This would mean that the position to which the applicant’s application relates is not a position which is subject to an approved nomination and therefore the applicant would not meet the criteria in cl.186.223. The applicant was required to provide any comments or response to this information by 21 March 2018. At the time of this decision, the applicant has not provided any response.

10. As the applicant has not provided any response to the s.359A notice the applicant has lost his entitlement to a hearing. The Tribunal has proceeded to a decision based on the information currently before it.

11. The applicants were represented in relation to the review by their registered migration agent.

12. 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

13. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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. It is a requirement that the Minister has approved the nomination.

14. The nomination application of the applicant’s sponsor was refused by the Department and that decision has now been affirmed by the Tribunal. The applicant has failed to provide any response or comment to this information. As the nomination application for the position to which this application relates is not a position where the Minister has approved the nomination the applicant does not meet the criteria in cl.186.223(2).

15. 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.

16. As the applicant does not meet the criteria for the grant of the visa and the only basis of the applications of the second named visa applicants are that they are members of the family unit of the person who satisfies the primary criteria, the decision to refuse their applications must also be affirmed.

    DECISION

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

    Hugh Sanderson
    Member