Selimi (Migration)

[2020] AATA 4065

Selimi (Migration) [2020] AATA 4065 (2 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nazar Selimi
Mrs Afrdita Nazifovska
Mr Jeton Nazifovski
Miss Linda Nazifovska

CASE NUMBER:  1824292

HOME AFFAIRS REFERENCE(S):          BCC2017/2977872

MEMBER:Antonio Dronjic

DATE:2 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 02 September 2020 at 2:06pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Vegetable Grower –nomination refused–not the subject of an approved nomination– unique or exceptional circumstances – Ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 351, 360
Migration Regulations 1994, rr 1.13, 5.19, 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 Home Affairs on 9 August 2018 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 18 August 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 (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 Temporary Residence Transition stream, to work in the nominated position of Vegetable Grower (ANZSCO 121221)

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 because the nomination application lodged by the applicant’s employer, the Trustee for The Bogicevic Family Trust was refused by the Department on 2 July 2018. The delegate also refused to grant subclass 186 visa to the secondary applicants on the grounds that they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

6. The applicants applied to this Tribunal for review of the primary decision on 21 August 2018 and were represented in relation to the review by their registered migration agent. They submitted a copy of the primary decision record with their review application.

7. On 11 August 2020, the Tribunal wrote to the applicants inviting comments on or response to the following information under section 359A:

   ·Your visa applications were refused by the Department on 9 August 2018, because the nomination mentioned in cl.186.223 has not been approved.

   ·The decision not to approve the nomination by the Trustee for The Bogicevic Family Trust was made by the Department on 2 July 2018.

   ·The Trustee for The Bogicevic Family Trust applied for review of this decision at this Tribunal on 16 July 2018.

   ·On 6 August 2020, the Tribunal affirmed the Department’s decision not to approve the nomination made by the Trustee for The Bogicevic Family Trust.

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 186 visa. This is because one of the criteria contained within subclass 186, namely clause 186.223 requires that the nomination was approved by the Minister and that nomination has not subsequently been withdrawn.

   This information is relevant to the second, third and fourth named review applicants because cl.186.311 which prescribes that the secondary applicants meet the requirement of this subclause if the applicants are members of the family unit (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa and they made a combined application with the primary applicant. Accordingly, if the first named review applicant is not a holder of a subclass 186 visa, the secondary applicants will not be able to meet cl.186.311. The applicants were invited to provide their comments on or response to the information by 25 August 2020.

8. On 25 August 2020, the applicants’ representative responded to the Tribunal letter, conceding that Mr Selimi is unable to satisfy r.186.223 of the Regulations due to the refusal of the Trustee for the Bogicevic Family Trust’s employer nomination application in relation to his role at the business. It was submitted that this case exhibits unique and exceptional circumstances which weigh in favour of the Tribunal referring this matter for Ministerial intervention consideration under s.351 of the Act.

9. On 27 August 2020, the Tribunal wrote to the applicants seeking their clarification as to whether they consent to the Tribunal deciding the review without the applicants appearing before it (as per s.360(2)(b)).

10. On 31 August 2020, the applicants’ representative wrote to the Tribunal advising that the applicants have instructed her office to consent to the decision being made without the applicants attending the hearing.

11. As the applicants consented under s.360(2)(b) of the Act to the Tribunal deciding the review without the applicants appearing before it, the Tribunal proceed to its decision.

12. 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

13. 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.

14. 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.

15. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 186.223 lodged by the Trustee for The Bogicevic Family Trust on behalf of the first named applicant, has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that the first named applicant does not meet the requirements of clause 186.223 at the time of its decision.

16. 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.

17. The Tribunal must also affirm the decisions not to grant the second, third and fourth named applicants a subclass 186 visa as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary visa criteria for this subclass, or any other subclass within Class EN, in their own right.

    Request for referral to the Minister for his intervention under s.351 of the Act.

18. The applicant requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 of the Act which gives the Minister discretion to substitute a decision of the Tribunal for another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

19. In her submissions of 25 August 2020, the applicant’s representative inter alia stated that this matter exhibits the following unique and exceptional circumstances which weigh in favour of the Tribunal referring this matter for Ministerial intervention under s. 351 of the Act:

    ·The incorrect advice that Mr Selimi and his sponsoring employer, the Trustee for the Bogicevic Family Trust, trading as Coolibah Herbs Pty Ltd (“Coolibah Herbs”) received from its former migration agent, which led to the lodgement of Subclass 186 nomination and visa applications which were inevitably unable to be successful. Mr Selimi and his family relied upon the advice of their former migration agent, as being registered and endorsed by the Australian Government to provide competent immigration advice and assistance, to their ultimate disadvantage;

    ·Mr Selimi’s ongoing employment with Coolibah Herbs in Australia’s agriculture and food production industry, which is experiencing severe skills shortages in general, with such skills shortages exacerbated by the COVID-19 coronavirus pandemic; and

    ·The compelling and compassionate circumstances which affect the Review Applicants and their Australian-citizen family members, including:

    (i) Mr Selimi’s elderly Australian-citizen parents, who live with Mr Selimi and are dependent upon him and his immediate family members for care and support;

    (ii) Jeton’s strong connections to Australia, including his Australian-citizen wife who is now pregnant with their first child;

    (iii)Linda’s strong connections to Australia, as well as her Australian citizen husband and parents-in-law.

20. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s.351, s.417, and s.501J)’ and the Tribunal’s President’s direction.

21. Based on the evidence before it, the Tribunal is satisfied that this matter exhibits unique or exceptional circumstances that warrant referral to the Minister.

    DECISION

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

    Antonio Dronjic
    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.