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

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).
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).
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Safi (Migration) [2022] AATA 4863
Case: [2022] AATA 4863
Decision Date: 10 November 2022

CaseChat Overview and Summary

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, subclass 186, Temporary Residence Transition stream. The applicant sought review of a decision affirming the refusal of his visa application. The core of the dispute revolved around the applicant's failure to satisfy a key criterion relating to an approved employer nomination.

The Tribunal was required to determine whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994, specifically whether the position to which his visa application related was the subject of an approved nomination that had not been withdrawn. The Tribunal also considered whether compassionate circumstances raised by the applicant, such as the nomination refusal being outside his control and his long residency in Australia, could permit a waiver of this legislative requirement.

The Tribunal reasoned that clause 186.223(2) mandates that the Minister must have approved the nomination. It was not disputed that the applicant's employer's nomination had been refused by the Department and that this refusal had been affirmed by the Tribunal on a prior occasion, with the refusal decision remaining operative. Consequently, the applicant was not the subject of an approved nomination. The Tribunal found that this failure to meet the requirement of an approved nomination meant the applicant could not satisfy clause 186.223 as a whole. The Tribunal noted that even if the applicant were to obtain a new nomination, it would not be the nomination in relation to which the visa application declaration was made, referencing the reasoning in *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105. The Tribunal concluded that there was no legislative discretion to waive this requirement based on compassionate grounds.

The Tribunal affirmed the decisions not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF LAW, CLAIMS AND EVIDENCENomination of a position 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. 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. 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. 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. 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.

Decision

Reasons for decision

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 The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.Alison MercerMemberATTACHMENT A186.223(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.

Ratio Decidendi

Legal Principle Established

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