Saqib (Migration)

[2020] AATA 1298

Saqib (Migration) [2020] AATA 1298 (9 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Sajjad Saqib
Mrs Naveela Razaq
Master Muhammad Atisam Ali
Miss Hareem Fatima

CASE NUMBER:  1730978

HOME AFFAIRS REFERENCE(S):          BCC2016/1596352

MEMBER:Jennifer Cripps Watts

DATE:9 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 9 April 2020 at 3:46pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – ICT Account Manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 (the delegate) on 28 November 2017 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 29 April 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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of ICT Account Manager, ANZSCO code 225211.  The related application for nomination of the position was made by Ahmer Arif Ismail.  Their nomination was refused on 24 October 2017.  An application for review was made on 9 November 2017 and, on 19 December 2019, the decision not to grant the nomination was affirmed by the Tribunal (differently constituted), Tribunal matter 1727697.

5. The delegate refused to grant the Subclass 186 visa that is the subject of this review because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the position to which the visa application related was not the subject of a nomination approved by the Minister. The secondary applicants’ visas were refused because they were not members of the family unit of a person who held a Subclass 186 visa.

6. The applicant appeared before the Tribunal by phone, on 8 April 2020, to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent, Mr Ireneusz Lasocki, who also attended the scheduled hearing by phone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the position to which the Subclass 186 visa application relates is the subject of an approved nomination by Ahmer Arif Ismail.

   Nomination of a position

10. 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.

11. 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 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.

12. The applicant’s Subclass 186 visa application was made on the basis of a related nomination application for the position of ICT Account Manager, made by Ahmer Arif Ismail.  The nomination was refused on 24 October 2017 and, on review, the decision to refuse the nomination was affirmed.  

13. The applicants were invited to attend a scheduled hearing on 8 April 2020.  Prior to the hearing, the Tribunal wrote to the applicants to inform them of adverse information; essentially, that the decision of the delegate to refuse the related nomination had been affirmed by the Tribunal on 19 December 2019.  The letter was sent on 5 March 2020 and particularised the relevant information relating to the nomination refusal and Tribunal decision.  It was explained that without an approved nomination by Ahmer Arif Ismail, the applicant could not meet the criteria for the grant of the visa.  The applicants were invited to respond to, or comment on, the information no later than 19 March 2020. 

14. On 14 March 2020, the Tribunal was informed by Mr Lasocki that he had just been appointed as the applicants’ migration agent.  He confirmed the applicant would be attending the Tribunal hearing.  In addition, Mr Lasocki made a request for access to written material under s.362A of the Act.  He also requested an extension of time to respond to the Tribunal’s 16 March 2020 letter.  The Tribunal considered the request and granted an extension (about a week), up to the day of the hearing.  On 25 March 2020, partial access was granted to the Department file and the documents were sent to Mr Lasocki by email.  It is noted that three documents were excluded because they were identified as having been mistakenly put on the file: they related to a third party in a different matter (Department file Doc IDs. 3999565, 3999575 and 3999576).

15. Written submissions and a number of other documents were received by the due date, including:

    a.Mr Lasocki’s written submissions, dated 7 April 2020

    b.Educational qualification obtained in Australia

    c.PAYG statements

    d.Payslips

16. Evidence was given that the nominating company, Ahmer Arif Ismail, where the applicant was working, did not inform that his business was being monitored or of the cancellation of their standard business sponsorship.  The applicant claims that he has been left in an unfavourable position, through no fault of his own.  He has retrained as a pastry cook.

17. In Mr Lasocki’s written submissions, it was requested ‘that the Tribunal provided, if possible, a favourable appeal decision; the Departments refusal decision be set aside and substituted, in these compelling circumstances, by a decision favourable to the appellants … (and) to allow him to remain in Australia and for his family to ultimately join him here’.  Claims as to what the applicant considered to be compelling matters were detailed in the written submissions, essentially that the applicant will continue to suffer emotional and financial hardship if the visa is not approved.  The Tribunal read the submissions at the hearing and it was then discussed with the applicant, and Mr Lasocki, that the requirement that the applicant to meet cl.186.223(2) is not discretionary; that is, the Tribunal has no power to consider compelling reasons to waive the criterion for the grant of the visa.

18. Both the applicant, and Mr Lasocki, confirmed that the applicant does not have an approved nomination relating to the position in his visa application and they understood that this is required to meet cl.186.223.  The Tribunal has had regard to relevant written and oral evidence in reaching its decision.

19. On the evidence, cl.186.223 is not met.

20. The applicant 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.

    Secondary applicants

21. The secondary criteria are for applicants who are members of the family unit of a person who satisfies the primary criteria.  Subclause 186.311 requires that a (secondary) applicant is a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

22. As the decision to refuse the applicant’s visa has been affirmed, the Tribunal must also affirm the decisions to refuse the visas of the secondary applicants.

    DECISION

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

    Jennifer Cripps Watts
    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.