MUSHTAQ (Migration)

[2020] AATA 3536

MUSHTAQ (Migration) [2020] AATA 3536 (17 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr HAMID MUSHTAQ
Ms MAHNOOR SHAUKAT

CASE NUMBER:  1724298

HOME AFFAIRS REFERENCE(S):          BCC2017/856233

MEMBER:De-Anne Kelly

DATE:17 August 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 17 August 2020 at 10:11am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination – Tribunal declined indefinite adjournment of decision – decision under review affirmed

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

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 25 September 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 3 March 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 Temporary Residence Transition stream, to work in the nominated position of Cook.

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 on the 3 March 2017 the nomination lodged by Ethnic Cuisines Pty Ltd being the nomination referred to in cl.186.223(1) was refused by a delegate of the Minister for Immigration and Border Protection.

6. The applicant appeared before the Tribunal 28 July 2020 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent Amit Baijal MARN: 0746261 of Visa Info Pty Ltd, NSW Australia.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets cl.186.223(2) which provides as follows;

   (2) The Minister has approved the nomination.

   Nomination of a position

10. 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 in the Temporary Residence Transition stream 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.

11. In addition, this criterion also requires that:

    ·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.

12. After the delegate of the Minister refused the employer nomination, the nominator lodged an application with the Tribunal to review the decision.

13. At the hearing the Tribunal under s359AA of the Migration Act 1958 gave the applicant particular information that the employer nomination refusal review had been affirmed on the 6 July 2020. The application for the employer nomination had been lodged several days prior to the applicant having held his 457 visa for two years and as such the employer nomination did not meet r.5.19(3)(c)(i). The Tribunal advised that there was a s375 certificate for the employer, but the Tribunal had placed no weight on an anonymous allegation in reaching a decision on the employer nomination.

14. The applicant chose to respond in the hearing. He started work in March 2015 and worked for two years and paid tax and it was not his fault but the lawyer’s fault and maybe employer’s fault. He is a good worker but got a refusal for his visa. He needed to sign because he did not want to pay tax. He did not work for eight months then the employer put documents for him as a casual and then as a full time. The lawyer did not know the rules and regulations, it is his fault. He had worked for the last six years and been paid cash in hand and worked seven days. Employer had ruined his life and just hired him a lawyer. He asked the Tribunal to delay in making a decision such that he could lodge a new employer nomination for different cuisines. He had applied for two companies, but they are not hiring during COVID-19. He was telling the right thing and the lawyer ruined his life.

15. The Tribunal advised that it could not delay making a decision but could give him 14 days to make further submissions. The applicant did not ask for an adjournment or extension of time to provide further information.

16. There was no further information or submissions made by the applicant.

17. During the hearing, the Tribunal asked if the applicant could understand the interpretation and he responded that he could understand the interpretation.

18. The Tribunal considers it is reasonable to move to a decision in this case. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs and Manna v Minister for Immigration and Citizenship where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

19. Since the Tribunal has affirmed the employer nomination decision under review there is no approved employer nomination to satisfy cl.186.223(2) and the applicant, Mr Hamid Mushtaq does not meet cl.186.223(2).

20. Therefore, cl.186.223 is not met.

21. 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.

22. Ms Mahnoor Shaukat was a secondary applicant on the application for Employer Nomination (Permanent) (Class EN) visas (Subclass 186) and sought to satisfy cl.186.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.186.311. This clause provides as below. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the Visa application.

    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.

23. The secondary applicant made a combined application with the primary applicant and applied as the partner and therefore a member of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, an Employer Nomination (Permanent) (Class EN) (Subclass 186). Therefore, the primary applicant is not a person who holds a subclass 186 visa. The secondary applicant is a member of the family unit of the primary applicant, who does not hold a subclass 186 visa. Ms Mahnoor Shaukat therefore does not satisfy cl.186.311.

24. The secondary applicants do not meet cl.186.311 and the Tribunal affirms the decision not to grant Ms Mahnoor Shaukat a subclass 186 visa.

    DECISION

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

    De-Anne Kelly
    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.