Rizwan (Migration)

[2020] AATA 3577

Rizwan (Migration) [2020] AATA 3577 (19 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Rizwan
Mrs Afsheen Kanwal
Master Abdullah Muhammad

CASE NUMBER:  1912295

HOME AFFAIRS REFERENCE(S):          BCC2017/834185

MEMBER:Amanda Mendes Da Costa

DATE:19 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 19 August 2020 at 9.15am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Dog Handler or Trainer – subject of an approved nomination – no response to s.359(2) letter – not entitled to appear before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

CASES
Hasran v MIAC [2010] FCAFC 40

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 30 April 2019 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 2 March 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 (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 is seeking the visa in the Direct Entry stream, to work in the nominated position of Dog Handler or Trainer ANZSCO 361111.

5. The delegate refused to grant the visas because the first named applicant did not meet cl.186.233 of Schedule 2 to the Regulations because he was not the subject of an approved nomination as required by cl.186.233 of the Regulations.

6. On 30 July 2020 the Tribunal wrote to the applicants pursuant to s.359(2) of the Act, inviting them to comment on information that it considered would be the reason or part of the reason for affirming the decision under review. That information was that the first named applicant was not the subject of an approved nomination as required by cl.186.233 of the Regulations.  The Tribunal explained to the applicants that this information was relevant to the review because if the first named applicant he did not meet the requirements of cl.186.233, he did not meet the requirements for the grant of the visa.

7. The invitation was sent to the applicants via their registered migration agent, who was the person authorised to receive correspondence on behalf of the applicants for the purpose of the review.  The invitation advised that, if the comments were not provided in writing by 13 August 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicants would lose any entitlements they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The applicants have not provided the comments within the prescribed period and no extension has been granted.  In these circumstances s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issues in the present case are whether the first named applicant is the subject of an approved nomination and the second and third named applicants meet the criteria for the visa as members of the family unit of a person who has satisfied the primary criteria for the grant of the visa.

    Nomination of a position

11. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

12. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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.

13. On 27 July 2020 the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs made 26 March 2019, rejecting the nomination application of the first named applicant’s sponsor and prospective employer, Security Force Pty Ltd.

14. The Tribunal is further satisfied that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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. Therefore, the first named applicant does not meet cl.186.233.

16. The first named applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

17. As the Tribunal has found that the first named applicant does not satisfy the primary criteria for the grant of a Subclass 186 visa, it considers that the second and third named applicants do not meet the criteria for the visa as members of the family unit of a person who has satisfied the primary criteria for the grant of the visa.

    DECISION

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

    Amanda Mendes Da Costa
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.