Safi (Migration)

[2022] AATA 4863

Safi (Migration) [2022] AATA 4863 (10 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammad Hasan Mohammad Safi
Mrs Alia Ma'moun Ibrahim Hussein

CASE NUMBER:  1911769

HOME AFFAIRS REFERENCE(S):          BCC2017/681632

MEMBER:Alison Mercer

DATE:10 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 10 November 2022 at 3:39pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Customer Service Manager– at the date of its decision the applicant is not the subject of an approved nomination – members of the family unit of the first named applicant – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 186.223

CASES
Hasan v Minister for Border Protection [2016] FCCA 1049
Kaur v Minister for Immigration and Border Protection [2017] FCCA 564
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105

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 1 May 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 20 February 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 (the applicant) is seeking the visa in the Temporary Residence Transition (TRT) stream, to work in the nominated position of Customer Service Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations, which required (amongst other things) that he was the subject of an approved nomination by his Australian employer. The delegate found that the nomination of the applicant by his employer, the Trustee for Kleena Blinds and Curtains Unit Trust, had been rejected by the Department on 13 March 2019, and that the applicant had not responded to a natural justice letter sent to him about this. The delegate therefore refused to grant the applicant a subclass 186 visa as he did not meet the TRT stream criteria and had not made claims to meet any of the other streams. The delegate also refused to grant the second named applicant (the applicant’s wife) a subclass 186 visa as she did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 186 visa, and there was no evidence that she met the primary visa criteria in her own right.

6. The Tribunal received a review application from the applicants on 11 May 2019. It was accompanied by a copy of the delegate’s decision.

7. On 7 September 2022, the Tribunal wrote to the applicants, pursuant to s.359A of the  Act, to invite them to comment on information held by the Tribunal that was potentially adverse to their case. Specifically, the Tribunal noted that:

   ·at the time the applicant made his visa application on 20 February 2017, he was nominated by his employer, Trustee for Kleena Blinds and Curtains Unit Trust, as a Customer Service Manager and the second named applicant was included as a member of his family unit;

   ·the Department rejected this application on 1 May 2019 because the delegate found that the applicant did not meet cl.186.223 of Schedule 2 to the Migration Regulations as he was not the subject of an approved nomination at the time of the delegate’s decision. The delegate’s findings were made on the basis that the applicant’s employer’s nomination of him for the occupation of Customer Service Manager had been rejected by the Department on 13 March 2019;

   ·the delegate refused to grant the second named applicant a subclass 186 visa as she did not meet the secondary visa criteria requiring her to be a member of the family unit of a person who held a subclass 186 visa;

   ·the applicants applied to the Tribunal on 11 May 2019 for review of the Department’s decision to reject their subclass 186 visa applications;

   ·the Tribunal’s records indicated that Trustee for Kleena Blinds and Curtains Unit Trust lodged an application for review of the decision to refuse its nomination with the Tribunal but that the Tribunal made a decision on 28 March 2022 to affirm the refusal decision; and

   ·accordingly, there was currently no approved nomination of the applicant by Trustee for Kleena Blinds and Curtains Unit Trust, and the decision to refuse the nomination was not under review by the Tribunal.

8. The Tribunal indicated that this information was relevant to the review because, subject to their comments or response, it indicated that:

   ·the applicant was not the subject of an approved appointment made by the same employer who nominated him as required by cl.186.223, and this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it was a requirement that the primary applicant met cl.186.223 at the time of decision;

   ·the second named applicant was not a family unit member of a person who held a subclass 186 visa; and

   ·there was no evidence that they met the criteria in the Direct Entry or Labour Agreement streams of the subclass 186 visa.

9. The Tribunal further noted that since 18 March 2018, major legislative amendments were made to the subclass 186 and 187 visa categories and their associated nominations, such that a nomination by a new employer now would not satisfy cl.186.223 in respect of a subclass 186 visa application lodged prior to 18 March 2018.

10. The Tribunal requested that the applicants provide a response to this information by 21 September 2022.

11. On 9 September 2022, the applicants provided the following comments on the above information:

    My wife Alia Hussein can’t participate in the hearing by this phone number... Since my son Elias Mohammad Safi was born, in Gold Coast Hospital, after 186 visa was rejected, he got stand-alone visa. I emailed 457 visa governmental office and asked them about Elias’ rights to travel. They replied “if Elias goes overseas you might consider to bring him back to Australia by a tourist visa”. Alia went overseas to introduce Elias to our families in September 2019. Two moth [sic] later I applied for a tourist visa to get Elias back to Australia. The visa was rejected by the Australian embassy in Amman when he was 3 months old without a clear reason. Alia couldn’t leave the baby and travel to Australia. Therefore, she lost her Australian bridging visa. Then COVID-19 started. As a result of these unpleasant circumstances I couldn’t see them for three years. Finally when Australia has reopened its international border I visited them last July. I hope that my appeal will be accepted, so I can reunite with my family after living 12 years in Australia. Alia in Jordan but she can participate in the hearing by her Jordanian phone number...

12. Also provided were the following:

    ·birth certificate for the applicants’ son Elias, born in Queensland in June 2019;

    ·Department VEVO notification of grant of a bridging visa A to Elias from 18 June 2019; and

    ·Department notification of refusal to grant Elias a subclass 600 Visitor visa on 28 October 2019.

13. The applicant appeared before the Tribunal by telephone on 29 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

14. 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 applicant. 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 applicant was given a fair opportunity to give evidence and present arguments.

15. The applicant told the Tribunal that he stopped working for his nominating employer in 2017. He described it as a family business, and said that when the founder/owner retired, one third of the business was sold to a new owner. The original owner then decided not to retire, and to remain in the business, and ultimately, she decided to replace the applicant with the new owner of one third of the business, who took over the applicant’s role. The applicant said that he stopped work there about 1 week after his subclass 186 visa was refused. Since that time, he had worked for a cleaning company for a while but this business was affected by the COVID19 pandemic. About 6 months ago, he started work with a construction company in Brisbane, but as it was not considered a regional area of Australia, there was little hope of being able to get a visa through their nomination of him (although they were willing to nominate him as they were happy with his work).

16. The applicant told the Tribunal that he hoped to live in Australia and be reunited with his wife and son. He stated that he originally came to Australia in 2010 as a student, and undertook a Master’s degree in Health Service Management. In response to the Tribunal’s query, the applicant said that his wife and son Elias were still living overseas with his wife’s parents, and they were sharing 1 small room in the family home there. The applicant said that he had been in Australia for 12 years, but the last 7 years had been spent on a bridging visa, which made life very uncertain for him. He described chasing his dream for 12 years in Australia.

17. The Tribunal discussed with the applicant that cl.186.223 had no discretion within it to waive its requirements even where a person did not have an approved nomination by their employer for reasons outside their control, and/or where there were compassionate circumstances in the case. It estimated that, due to its existing workload, it expected to make its decision in this matter in 4 to 8 weeks.

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

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

    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. It is not disputed that although the applicant was nominated by his Australian employer, Trustee for Kleena Blinds and Curtains Unit Trust for a subclass 186 visa, the nomination by his employer was refused by the Department on 13 March 2019, and that refusal decision was affirmed by the Tribunal (differently constituted) on 28 March 2022. This means that it is no longer under review by the Tribunal and the Department refusal decision still stands as the operative decision.

22. Accordingly, the Tribunal finds that the applicant is not the subject of an approved nomination by the Trustee for the Kleena Blinds and Curtains Unit Trust and thus cannot satisfy cl.186.223(2). He therefore cannot meet cl.186.223 as a whole.

23. There is no evidence that the applicant is the subject of an approved nomination by another employer, and even if he were, the Tribunal’s view is that this would not satisfy cl.186.223. This was the view taken in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (which concerned an almost identically worded criterion for a subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the 'position' referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.

24. The Tribunal considers that, although the Court's comments were strictly obiter, they are nonetheless persuasive in relation to subclass 186 visas. As the relevant subclass 186 criteria are in the same terms, the Court's reasoning is also applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is withdrawn, the visa applicant will not meet cl.186.223 or cl.186.233 (as applicable).

25. Moreover, this view is consistent with the view taken in another decision, Kaur v Minister for Immigration and Border Protection [2017] FCCA 564, in which the Court cited with approval the previous case of Hasan v Minister for Border Protection [2016] FCCA 1049, to the effect that the nomination relied upon to satisfy cl.187.233 must be the one which had been made at the time of the visa application and could not be a later nomination, even if the later nomination were made by the same employer in relation to the same position as the nomination made at the time of the visa application.

26. In addition, the Tribunal notes that legislative changes took place on 18 March 2018 which also affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version. While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.186.233 in relation to a subclass 186 visa application made prior to 18 March 2018, as is the case here.

27. Therefore, the Tribunal must find that cl.186.223 is not met, and that the applicant cannot be granted a subclass 186 visa in the TRT stream. The applicant has only sought to satisfy the criteria for a subclass 186 visa in the TRT 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 in relation to the applicant must be affirmed.

28. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 186 visa as it finds that she does not satisfy the secondary visa criteria requiring her to be a member of the family unit of a person who holds a subclass 186 visa, and there is no evidence that she meets the primary visa criteria in her own right.

29. The Tribunal acknowledges that the applicant raised a number of issues at hearing of a compassionate nature, including the fact that the nomination refusal was outside his control, that he has resided in Australia for over 10 years, and has been separated from his wife and son for a significant period, but notes that there is no discretion in the legislation relating to the subclass 186 visa for the Tribunal to waive the requirement to meet cl.186.223 because of such factors.

    DECISION

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

    Alison Mercer
    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.