Saif (Migration)

[2023] AATA 3118

Saif (Migration) [2023] AATA 3118 (14 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ikram Ullah Saif
Master Shais Muhammad Saif
Master Maheen Saif
Ms Farkhanda Bashir

REPRESENTATIVE:  Ms Naomi Liu (MARN: 0853472)

CASE NUMBER:  1933115

HOME AFFAIRS REFERENCE(S):          BCC2018/5012141

MEMBER:Katie Malyon

DATE:14 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 14 September 2023 at 1:52 pm

CATCHWORDS  
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Chef – subject of an approved nomination – no response to s.359A letter – decision under review affirmed

LEGISLATION 
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs and Manna v Minister for Immigration and Citizenship [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 11 November 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 - Pakistani nationals Ikram Ullah Saif, Fatkhanda Bashir, Shais Muhammad Saif and Maheen Saif - applied for the visas on 12 November 2018.  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 primary visa applicant Ikram Ullah Saif is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Chef ANZSCO 351311 with his nominating sponsor RH Chhabra Pty Ltd (the Company).

5. The delegate refused to grant the visas on the basis Mr Saif did not meet cl 186.223 of Schedule 2 to the Regulations because his Subclass 186 visa application was not the subject of an approved nomination by the Company as required by cl 186.223(2).

   The Tribunal’s s 359A letter

6. On 28 August 2023, the Tribunal wrote to the applicants under s 359A of the Act inviting them to comment on, or respond to, information which the Tribunal considers would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The particulars of the information are:

   ·at the time you made your Subclass 186 visa application on 12 November 2018, you declared in your visa application that you were nominated by the Company;

   ·the Company’s nomination was refused by the Department on 6 August 2019;

   ·as a consequence, the delegate refused your Subclass 186 visa application on 11 November 2019 on the basis that the Company’s nomination was not approved. This was because Mr Saif did not meet cl 186.223 of Schedule 2 to the Regulations;

   ·on 15 August 2019, the Company sought review of the delegate’s refusal of its nomination at the Tribunal.  You also sought review of the delegate’s refusal of your Subclass 186 visa application;

   ·on 19 September 2022, the Tribunal decided that it did not have jurisdiction to review the delegate’s refusal of the Company’s nomination as the Company was de-registered by ASIC on 12 August 2021 and there is no evidence before the Tribunal that the Company’s registration had been reinstated; and,

   ·accordingly, there is currently no approved nomination by the Company in relation to you.

7. In its s 359A letter, the Tribunal explained that this information is relevant to the review because cl 186.223 of Schedule 2 to the Regulations requires the visa application to be the subject of an approved nomination. The Tribunal stated that, if this information is relied on in making its decision, it may find that Mr Saif’s visa application is not the subject of an approved nomination by the Company and that he does not satisfy cl 186.223 of Schedule 2 to the Regulations. In these circumstances, the Tribunal must affirm the decision under review to refuse the applicants’ Subclass 186 visa applications. The applicants were invited to provide a response by 11 September 2023.

8. The Tribunal is satisfied that its s 359A letter was properly dispatched to the email address of the applicants’ representative, Naoimi Liu. On 11 September 2023, the Tribunal attempted to call the representative but her phone was ‘disconnected’.

9. No response has been received from the applicants or their representative in response to the Tribunal’s s 359A letter. They have not commented on the adverse information set out in the Tribunal’s letter and nor have they sought additional time in which to do so.

10. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, the applicants are not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

11. Although the applicants have not requested this, the Tribunal has considered whether it would be appropriate to adjourn the review under s 363(1)(b) of the Act to allow them additional time in which to provide the evidence to support her review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the recent COVID-19 pandemic, evidence that Mr Saif meets the relevant requirements of cl 186.223 is likely to be forthcoming, whether the applicants have had a fair opportunity to provide the information already, and the significance of the information to them. The Tribunal has also taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

    [1] [2002] FCA 617.

    [2] [2012] FMCA 28.

12. In the circumstances of this case, the Tribunal considers that the applicants have had sufficient time to provide the requested information or seek an extension of time in which to do so. The Tribunal also notes that its review of Departmental records confirms that Mr Saif currently holds a Subclass 186 visa which was granted on 11 May 2023. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn this review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s 359C of the Act.

13. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether, as the primary applicant, Mr Saif satisfies the criteria in cl 186.223 of Schedule 2 to the Regulations.

    Nomination of a position

15. 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.

16. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn (emphasis added);

    ·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 those terms as defined in 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.

17. As stated above and set out in the Tribunal’s s 359A letter, the Company’s nomination was refused by the Department on 6 August 2019 and it sought review of that refusal decision in the Tribunal on 15 August 2019. However, on 19 September 2022 the Tribunal decided that it did not have jurisdiction to review the delegate’s refusal of the Company’s nomination as the Company was de-registered by ASIC on 12 August 2021 and there is no evidence before the Tribunal that the Company’s registration has been reinstated.

18. There is no evidence before the Tribunal to indicate that the applicants’ Subclass 186 visa application is the subject of an approved nomination by the Company. Therefore, cl 186.223 of Schedule 2 to the Regulations.is not met.

19. Mr Saif 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.

20. The applications of Master Shais Muhammad Saif,  Master Maheen Saif and Ms Farkhanda Bashir are based on their being members of the family unit of a person who meets the primary criteria.  As Mr Saif does not meet the primary criteria, the other applicants do not meet criteria for grant of the visa.  Accordingly, the Department’s decision to refuse the applications of the second named applicant, the third named applicant and the fourth named applicant must also be affirmed.

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from Schedule 2 to the Migration Regulations 1994

    Subclass 186

    …

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.

    oOOo