RASOOL (Migration)

[2022] AATA 2029

RASOOL (Migration) [2022] AATA 2029 (20 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Malik Rizwan RASOOL
Ms Anam Rizwan

REPRESENTATIVE:  Mr Leo Oostveen (MARN: 9793093)

CASE NUMBER:  1823303

HOME AFFAIRS REFERENCE(S):          BCC2017/4589794

MEMBER:Karen McNamara

DATE:20 June 2022

PLACE OF DECISION:  Sydney

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

The Tribunal does not have jurisdiction in this matter in relation to the second named applicant.

Statement made on 20 June 2022 at 2:25pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Customer Service Manager – subject of an approved nomination – jurisdiction in relation to the second named applicant – outside migration zone when review application was made – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347
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 Home Affairs on 6 August 2018 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 4 December 2017. 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 Mr Malik Rizwan Rasool (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager (ANZSCO 149212).

5. The decision record provided to the Tribunal by the applicant, records that the delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, which required Mr Malik Rizwan Rasool to be the subject of an approved nomination. The delegate found that the nomination lodged by EVS Group Australia Pty Ltd (the nominator) was refused on 23 June 2018.

6. Accordingly, as the nomination application had been refused, the delegate found that cl.186.223(2) was not met and therefore the applicant did not meet cl.186.223 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant (Ms Anam Rizwan) could not be granted a Subclass 186 visa, as she did not meet the secondary visa criterion (cl.186.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

8. The applicants applied to the Tribunal on 13 August 2018 for review of the delegate’s decision.

9. On 5 May 2022, the Tribunal invited the review applicants under s.360 of the Migration Act 1958 to appear before the Tribunal via telephone on 17 June 2022 at 11:30 am.

10. On 10 May 2022, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. 

11. The information related to information before the Tribunal that shows on 7 December 2021, the Tribunal dismissed the application for review made by the nominating employer EVS Group Pty Ltd and for this reason the original decision made by the delegate from the Department of Home Affairs is unchanged.

12. The Tribunal’s letter of 10 May 2022 additionally stated the following:

    ‘ The above information is relevant because cl.186.223(2) requires that the nomination

    made in relation to you by your nominating employer has been approved. The nomination relied on to satisfy cl.186.223 must be the one that was made at the time of the visa application – it is not possible to rely on another nomination.

    If the Tribunal relies on this information, it may find that the nomination in relation to
    you has not been approved and consequently the decision under review would be
    affirmed. You must have a related nomination to be able to be granted the visa.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 24 May 2022. If the comments or
    response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 24 May 2022, you may
    ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 24 May 2022, and you must state
    the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    An invitation to attend a scheduled hearing was sent to you on 5 May 2022.
    Please note, however, that if you do not respond to this letter within the date specified or within any extended timeframe, you will lose your right to attend the scheduled hearing and it will be cancelled. The Tribunal will proceed to make a decision on the review without taking any further action to obtain your views on the information.’

13. The applicants did not provide comments or response to the Tribunal’s invitation, within the prescribed period, however on 11 May 2022, Mr Malik Rizwan Rasool provided a completed response to the Tribunal’s hearing invitation. Having consideration that the applicant conveyed his intention to attend the hearing, the Tribunal decided to afford the applicant the opportunity to appear before the Tribunal at the scheduled hearing on 17 June 2022.

14. Mr Malik Rizwan Rasool appeared on behalf of the applicants, before the Tribunal via telephone, on 17 June 2022 to give evidence and present arguments.

15. 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.

16. The applicants were represented in relation to the review. The representative did not attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant meets the requirements of cl.186.223 of Schedule 2 to the Regulations.

    Nomination of a position

19. 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.

20. 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.

21. At the hearing of 17 June 2022, the Tribunal explained that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration regulations are satisfied. In order to meet cl.186.223, the applicant must be subject of an approved nomination.

22. The Tribunal invited the applicant to address the hearing in so far as there is no evidence of the applicant being subject of an approved nomination. The applicant told the Tribunal that he had worked in the nominated position whilst holding a 457 visa for over two years and could not understand why the Department refused the nomination application. The Tribunal told the applicant that the issue before the Tribunal and the matter that the Tribunal must consider, is whether the applicant is subject of an approved nomination and cannot revisit the decision made by the Department in regard to the nomination.

23. The Tribunal acknowledges the applicant’s situation and has empathy for his circumstances however, the Tribunal must apply the legislation as it stands. As explained to the applicant during the hearing, the Tribunal has no discretion in this matter and must apply the relevant law. 

24. Having considered the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.186.223(2) of Schedule 2 to the Regulations.

25. As the applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 of Schedule 2 to the Regulations is not met.

26. There is no evidence before the Tribunal to indicate that the secondary applicant meets the primary requirements for grant of the visa.

    Jurisdiction in relation to the second named applicant

27. Section 347(2) of the Act, specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act.  In the case of a decision described in s.338(2) of the Act, an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and s.347(3) of the Act.  The term migration zone is defined in s.5(1) of the Act and generally means the Australian States and Territories.

28. Department records indicate the second named applicant (Ms Anam Rizwan), was offshore at the time of the primary decision on 6 August 2018 and at the time the application for review was lodged on 13 August 2018. In the circumstances, the Tribunal finds that Ms Anam Rizwan was not in the migration zone at the relevant time. 

29. The Tribunal further notes that the decision record provided to the Tribunal by the applicants, records that in regard to the second named applicant ‘there is no right of merits review for this decision’.

30. As such the application for review made by Ms Anam Rizwan does not meet the requirements of s.347 of the Act and accordingly, the Tribunal does not have jurisdiction in relation to the second named applicant.

31. 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

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

    ·The Tribunal does not have jurisdiction in this matter in relation to the second named applicant

    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 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.