NAWAZ (Migration)

[2020] AATA 3029

NAWAZ (Migration) [2020] AATA 3029 (7 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MUHAMMAD NAWAZ

CASE NUMBER:  1721594

HOME AFFAIRS REFERENCE(S):          BCC2017/1701259

MEMBER:Mr S Norman

DATE:7 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 07 May 2020 at 3:25pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Fleet Manager – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359A

Migration Regulations 1994, Schedule 2, cl 186.223(2)

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 6 September 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for the visa on 12 May 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). 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.

3. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Fleet Manager (ANZSCO: 149411). The delegate refused to grant the visa because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 15 April 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the associated nominator (Alnoor Logistics Pty Ltd, represented by its Director, Mr Muhammad Zakria); and the nominator’s accountant (Mr Steven Puljic). The applicant was represented in relation to the review by its registered migration agent.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. After having inter alia conducted the hearing, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

6. 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

7. 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.

8. 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.

9. On 19 July 2017, the nomination application lodged by Alnoor Logistics P/L, was refused by a delegate of the Department. This was the nomination referred to in cl.186.223(1). The delegate provided the applicant with an opportunity to comment about this. On 8 August 2017, the applicant’s agent requested the delegate defer making any decision about the visa applicant’s case while the nominator’s merits review case was being considered by the Tribunal. After declining to do so, the delegate said the applicant had not met cl.186.223(2); or cl.186.223.

10. Next, the delegate considered the ultimate visa streams but found the applicant did not meet the criteria set out therein (for the reasons provided in the delegate’s decision). The delegate then refused to grant the applicant a Employer Nomination Scheme (Subclass 186) visa.

11. By s.359A letter dated 21 April 2020 (dispatched by email to the authorised recipient), the Tribunal wrote to the applicant and advised that on 20 April 2020, the Tribunal had affirmed the Department decision to refuse the nomination application by the nominating employer (Alnoor Logistics Pty Ltd). The applicant was also advised that this information is relevant because cl.186.223(2) requires that the nomination made in relation to him by his nominating employer has been approved. The Tribunal also advised that subject to his comments, if the Tribunal relies on this information it may find that the nomination in relation to him has not been approved and consequently the decision under review would be affirmed. The applicant was requested to respond in writing by 5 May 2020. At the time and date of this decision, no material response had been received.

12. Therefore, and based on the evidence before it, the Tribunal is not satisfied the applicant has met cl.186.223(2).

13. Therefore, cl.186.223 is not met.

14. 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.

    DECISION

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

    Mr S Norman
    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.