Parveen (Migration)

[2023] AATA 3639

Parveen (Migration) [2023] AATA 3639 (25 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Zakia Parveen
Mr Abul Hossain
Miss Tasneem Tazrian Hossain
Mr Ishfar Bin Hossain
Miss Tanisha Tahniyat Hossain

REPRESENTATIVE:  Ms Upasna Talwani

CASE NUMBER:  1934842

HOME AFFAIRS REFERENCE(S):          BCC2019/2345583

MEMBER:Karen McNamara

DATE:25 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl 186.223(2) of Schedule 2 to the Regulations.

Statement made on 25 October 2023 at 10:54am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Accountant (General) – nomination approved upon review – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; rr 1.13, 5.19

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 19 November 2019, to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 1 May 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 first named applicant Ms Zakia Parveen (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Accountant (General) (ANZSCO 221111).

5. On 19 November 2019, 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 21 October 2019, the nomination application lodged by Diganta Holdings Group Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs.

6. The delegate also found that the second named applicant (Mr Abul Hossain), third named applicant (Miss Tasneem Tazrian Hossain), fourth named applicant (Mr Ishfar Bin Hossain) and fifth named applicant (Miss Tanisha Tahniyat Hossain), could not be granted a Subclass 186 visa, as they did not meet the secondary visa criterion (cl.186.311), requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants applied to the Tribunal on 9 December 2019, for review of the delegate’s decision.

8. On 31 August 2023, Ms Zakia Parveen appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mohamad Sumon Miah (the nominator) in the related matter for the nomination review application (AAT Case file 1931365). The related matters were heard concurrently in a combined hearing.

9. The Tribunal exercised its discretion to hold the hearing by telephone. 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 applicants. 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. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

10. The applicants were represented in relation to the review. The representatives attended the hearing.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl.186.223(2).

    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 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.

15. The nominating employer, Diganta Holding Group Pty Ltd, applied to the Department for approval of a nomination in relation to the position/occupation of Accountant (General)  (ANZSCO 221111). That nomination was refused by the Department and consequently the applicants visa applications were refused.

16. Diganta Holding Group Pty Ltd, applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1931365). On 25 October 2023, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19 of the Regulations. Therefore, the applicant satisfies cl.186.223(2) of Schedule 2 to the Regulations.

17. The second named applicant (Mr Abul Hossain), third named applicant (Miss Tasneem Tazrian Hossain), fourth named applicant (Mr Ishfar Bin Hossain) and fifth named applicant (Miss Tanisha Tahniyat Hossain), applied on the basis of being a member of the family unit of the first named applicant (Ms Zakia Parveen). The applications by Mr Abul Hossain, Miss Tasneem Tazrian Hossain, Mr Ishfar Bin Hossain and Miss Tanisha Tahniyat Hossain, will be determined by reference to the outcome of Ms Zakia Parveen’s application on remittal to the Department for consideration.

18. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visas.

    DECISION

19. The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl 186.223(2) of Schedule 2 to the Regulations.

    Karen McNamara
    Member

    
    

    ATTACHMENT A

    186.223(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 Temporary Residence Transition stream; 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.