Rahman (Migration)

[2020] AATA 1603

Rahman (Migration) [2020] AATA 1603 (21 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Majeedur Rahman

CASE NUMBER:  1731148

HOME AFFAIRS REFERENCE(S):          Bcc2016/443202

MEMBER:Jennifer Cripps Watts

DATE:21 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 21 May 2020 at 11:50am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) –­ Temporary Residence Transition stream – ICT Account Manager – subject of ­an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 (the delegate) on 27 November 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 29 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 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  ICT Account Manager, Australian and New Zealand Standard Classification of Occupations code 225211.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because there was not an approved related nomination relating to the position in his visa application.

6. On 2 March 2020, the Tribunal invited the applicant to attend a scheduled hearing.  On 6 March 2020, the Tribunal sent the applicant a letter particularising adverse information relating to the nomination and explaining why this would be a reason or part of the reason for affirming the decision to refuse the visa; relevantly, he was informed that it appeared that his application was not the subject of an approved nomination for the position of ICT Account Manager.  It was requested in the letter that the applicant respond to the information in writing no later than 20 March 2020, or within any extended timeframe granted.  The applicant did not request additional time to respond and did not provide a response by the specified date.  In the letter the applicant was also informed that if he did not respond to the adverse information that he would lose his right to appear before the Tribunal to give oral evidence and that the scheduled hearing would be cancelled.

7. The Tribunal wrote to the applicant on 24 March 2020 informing him, on the basis he had not responded to the earlier letter, that the hearing scheduled on 8 April 2020 had been cancelled.  The applicant was informed that he could still provide any additional information he wished to be considered on the review, by 27 March 2020.  No response was received and no additional information has been provided at the time of this decision.

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 nomination for the position of ICT Account Manager by Ahmer Arif Ismail, relating to the visa application, has been approved.

   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. Departmental records indicate that the nomination relating to visa application and the position of ICT Account Manager was refused on 24 October 2017.  An application for review was lodged by Ahmer Arif Ismail and the decision not to approve the nomination was affirmed by the Tribunal (differently constituted) on 19 December 2019.

13. The applicant was informed of this adverse information, which was particularised by the Tribunal in the letter sent under s.359A of the Act, on 6 March 2020.  It was explained why not having the related approved nomination would be a reason or a part of the reason for affirming the decision to refuse the applicant’s Subclass 186 visa that is the subject of this review.  Essentially, this is because the position to which the visa application relates must be the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made.

14. The Tribunal is satisfied that there is no approved nomination for the position in the applicant’s visa application.  Therefore, cl.186.223 is not met.

15. 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

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

    Jennifer Cripps Watts
    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.