Nisar (Migration)

[2020] AATA 3069

Nisar (Migration) [2020] AATA 3069 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hassan Nisar

CASE NUMBER:  1725984

HOME AFFAIRS REFERENCE(S):          BCC2016/2650846

MEMBER:Penelope Hunter

DATE:11 June 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 11 June 2020 at 6:04pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 4 October 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 August 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Accountant by his employer S & S Cabs Pty Ltd. 

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination application lodged by S & S Cabs Pty Ltd in respect of the applicant was not approved.

6. On 24 April 2020, the Tribunal wrote to the applicant pursuant to the provisions of s.359A of the Act inviting the applicant to provide comment on information that it considered would be a reason or part of a reason for affirming the decision under review in writing. The information related to the Tribunal upon review affirming the decision of the Department to refuse the nomination application lodged by S & S Cabs Pty Ltd. The Tribunal explained that the relevance of the information and informed the applicant that if it relied on the information that it may find that the relevant nomination had not been approved and that the applicant may not be able to meet the requirements in cl.186.223(2) of Schedule 2 to the Regulations.

7. On 5 May 2020, the Tribunal received a response from the applicant. He advised that he had travel back to Pakistan and due to COVID-19 travel restrictions was unable to return to Australia. He requested an extension of time to provide a response. The Tribunal wrote to the applicant and provided a further extension until 22 May 2020 for the applicant to respond.

8. On 21 May 2020, the applicant again wrote to the Tribunal requesting further time. The Tribunal determined to provide the applicant with a hearing by telephone in which he could provide evidence and present arguments. The hearing invitation was emailed to the applicant on 25 May 2020 to the last email provided by the applicant in relation to the application for review. The hearing invitation set out the mobile number supplied by the applicant in relation to the application for review and the applicant was advised to contact the Tribunal if the number was incorrect or he wished to be contacted on a different number.

9. The Tribunal was unable to contact the applicant on the number that the he identified in the application at the hearing time. The hearing invitation was sent by email to last address nominated by the applicant in respect of the application. This was the same email from which the Tribunal received the applicant’s submissions of 9 March 2020. The hearing invitation also advised the applicant that if he did not participate in the scheduled hearing that the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

10. The Tribunal has considered the applicant’s submissions that he is unable to return to Australia and wishes to access certain documents. However, the applicant has been informed of the issue relevant to the review and for the reasons set out below the Tribunal was not satisfied that there was merit in further delaying the matter. The Tribunal considers that the applicant has been provided with a reasonable opportunity to participate in a hearing and has determined to proceed to a decision in this matter.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the nomination has been approved.

    Nomination of a position

13. 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.

14. 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.

15. The applicant has applied for the visa on the basis of a nomination in the position of Accountant with his employer S & S Cabs Pty Ltd. As set out in the decision of the delegate, submitted to the Tribunal by the applicant, this nomination was refused by the Department on behalf of the Minister on 7 July 2017.

16. Upon review, as set out in the s.359 letter to the applicant, the decision to refuse the nomination by S & S Cabs Pty Ltd was affirmed by the Tribunal on 3 March 2020.

17. The approval of the nomination is an essential requirement for the grant of the visa. On the material before it the Tribunal finds that the relevant nomination by S & S Cabs Pty Ltd, the subject of the declaration when the visa application was made, has not been approved. It therefore follows that the applicant has not met cl. 186.223(2) and cl. 186.223 of Schedule 2 to the Regulations is not met as a whole.

18. 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.

    Other matters

19. Contained within the Department file was a Certificate of Non-Disclosure pursuant to s.375A of the Act, in relation to two documents identified on the Department file. The  delegate claimed that disclosure of the information contained in the documents would be “contrary to public interest” because “the document contains information in relation to internal procedures”. The Tribunal is not satisfied that the claimed internal procedures are a valid public interest reason for non-disclosure and finds that the Certificate is not valid. The Tribunal has examined the documents in question and they relate to checks on the applicant’s passport. In any event the information subject to the Non-Disclosure Certificate is not relevant to the Tribunal’s decision in relation to this application. 

    DECISION

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

    Penelope Hunter
    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.