Salad (Migration)

[2018] AATA 1557

Salad (Migration) [2018] AATA 1557 (4 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Fartun Farah Salad
Mr Liban Warsame
Mr Hanad Mohammed Mohammud
Mr Qays Mohamed Mohamud
Mr Badar Sooyaan Warsame

CASE NUMBER:  1621351

DIBP REFERENCE(S):  BCC2016/480358

MEMBER:Bridget Cullen

DATE:4 April 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 04 April 2018 at 11:09am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3)
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 186.233(3)

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 Immigration and Border Protection on 9 December 2016 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 1 February 2016. 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Corporate General Manager (ANZSCO 111211). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination lodged by Best Friend Family Day Care Pty Ltd ATF Best Friend Family Trust, being the nomination referred to in cl. 186.233(2) was refused by a delegate of the Minister. As the nomination was not approved, the applicant did not meet cl. 186.233(3), and therefore the applicant did not meet cl.186.233.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

9. 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.

10. On 19 March 2018, the Tribunal sent to the applicants a letter under s.359A of the Act to comment on or respond to adverse information. The letter explained that:

    The particulars of the information are:

    ·On 1 February 2016, Fartun Farah Salad lodged an application for an Employer Nomination (Permanent) (Class EN) visa; with Liban Warsame, Badar Sooyaan Warsame, Qays Mohamed Mohamud and Hanad Mohammed Mohammud as secondary applicants.

    ·On 21 October 2016, the nomination lodged by Best Friend Family Day Care Pty Ltd ATF Best Friend Family Trust, being the nomination referred to in paragraph 186.233(1) for the purposes of your visa application, was refused by a delegate of the Minister for Immigration and Border Protection (now Minister for Home Affairs).

    ·On 16 March 2018, the Tribunal dismissed the application lodged by Best Friend Family Pty Ltd ATF Best Friend Family Trust (the decision under review is taken to be affirmed).

    Under Migration Law, a visa cannot be granted unless the applicant meets the relevant legal requirements that are specified in the Act and the Regulations. The legal requirements in clause 186.233 in Schedule 2 to the Regulations are attached. Based on the information before it, the Tribunal may find that you do not have a position nominated in the application for approval, and may not meet the requirements of clause 186.233(3) in Schedule 2 to the Regulations.

11. The applicants were directed to provide their comments on or response to the adverse information by 3 April 2018. To date, the Tribunal has not received any comments on or response to the relevant adverse information. Nor has the Tribunal received any request for additional time in which to provide any comments or response. In these circumstances, and pursuant to s.359C(2) of the Act, the Tribunal has decided to make its decision on the review without taking any further action to obtain the applicants' views on the information. Further, pursuant to s.360(3), the applicants are not entitled to appear before the Tribunal.

12. As foreshadowed in that letter, the Tribunal finds on the basis of the above information that the relevant nomination has not been approved and, accordingly the applicant does not meet the requirements of cl.187.233(3). She therefore does not meet the requirements of cl.187.233 in its entirety.

13. The 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.

14. There are no claims or evidence before the Tribunal to indicate that the second, third, fourth, or fifth named applicants meet the primary criteria for the grant of the visa. Rather, their entitlement to a visa is initially dependent on whether the primary applicant is successful in obtaining the visa, and then on whether they meet any additional visa criteria applicable. Given the Tribunal's finding that the applicant does not meet the criteria for the grant of the visa, and given the lack of any claims or evidence to show that the second, third, fourth, or fifth named applicants meet the primary criteria for the grant of the visa, it follows that they are also not entitled to the visa.

    DECISION

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

    Bridget Cullen
    Member