Rahman (Migration)

[2018] AATA 1986

Rahman (Migration) [2018] AATA 1986 (14 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Farjana Rahman
Mr Md Raisul Islam
Master Rukayat Laibaah Islam

CASE NUMBER:  1704664

DIBP REFERENCE(S):  BCC2016/96890

MEMBER:Hugh Sanderson

DATE:14 June 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 14 June 2018 at 8:46am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – applicant was not the subject of an approved nomination – Tribunal affirmed nomination refusal – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
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 3 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 6 January 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 accountant. 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’s sponsor, Mr Khan, had been refused by the Department and therefore the applicant was not the subject of an approved nomination.

   Background

6. The applicant applied for the visa on the basis of his employment by Mr Khan as an accountant in Mr Khan’s business. The second named applicants have applied for the visa on the basis of being members of the family unit of the applicant meeting the primary criteria.

7. The Department refused the nomination application of Mr Khan on 23 January 2017. As the nomination application had been refused by the Department the delegate found that the position to which the application relates was not a position that the Minister had approved the nomination and therefore the applicant did not meet the criteria in cl.186.223 and refused the application. As the application of the first named applicant was refused, the applications of the second named applicants were refused as they were not members of the family unit of a person who met the primary criteria. The decision to refuse the applications was made on 3 March 2017.

8. Both the nominator and the applicant applied to the Tribunal for a review of the decisions to refuse the nomination application and the visa application.

9. On 25 May 2018 the Tribunal issued a decision affirming the Department’s decision to refuse the nomination application. On 28 May 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act. The Tribunal noted that as the decision of the Department to refuse the nomination application had been affirmed by the Tribunal on review the applicant was not subject to an approved nomination. This would be the reason, or a part of the reason, for affirming the decision under review as the Tribunal may find that the applicant does not satisfy cl.186.223 as they are not subject of an approved nomination. The applicant was required to comment on or respond to this information by 12 June 2018. The applicant was advised if she failed to respond to or comment on this information by 12 June 2018 that the Tribunal may make a decision without taking any further action to obtain information from the applicant and she would lose any entitlement to a hearing.

10. At the time of this decision, the Tribunal has not received any response from the applicant. Accordingly, the applicant has lost any entitlement she had to a hearing and the Tribunal has proceeded to a decision in the matter.

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

13. The issue in the present case is whether the applicant is the subject of an approved nomination.

    Nomination of a position

14. 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.

15. The basis of the application was that the applicant was sponsored for the visa by Mr Khan. The nomination application by Mr Khan has been refused by the Department and that decision has now been affirmed on review by the Tribunal. There is no information before the Tribunal that the applicant is subject to an approved nomination.

16. It is a requirement for the grant of the visa that the position to which the application relates is a position that is subject to an approved nomination. As the nomination application has been refused, the applicant is not subject of any approved nomination. Accordingly, the applicant does not meet the criteria in cl.186.223(2).

17. 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.

18. The applications of the second named applicants are based on the claim that they are members of the family unit of a person who meets the primary criteria. As the applicant does not meet the criteria for the grant of the visa, she does not meet the primary criteria. As such, the second named applicants do not meet the secondary criteria for the grant of the visa and the decision to refuse their applications must be affirmed.

    DECISION

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

    Hugh Sanderson
    Member