Shahnshahi (Migration)

[2018] AATA 2649

Shahnshahi (Migration) [2018] AATA 2649 (21 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Nadeem Shahnshahi
Mrs Aliya Nadeem Shahnshahi
Master Muhammad Ibrahim Shahnshahi
Ms Sabiha Nadeem Shahnshahi
Mr Muhammad Ismail Shahnshahi
Ms Ruba Nadeem Shahnshahi

CASE NUMBERS:  1726325 & 1724789

DIBP REFERENCE(S):  BCC2017/263154

MEMBER:R. Skaros

DATE:21 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 21 June 2018 at 11:51am

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition Stream – Nomination approval – Tribunal affirmed Department’s decision not to approve the nomination – Secondary applicants – Members of the same family unit – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 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 Immigration and Border Protection on 6 October 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 19 January 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 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 Sales and Marketing Manager for Skyword Pty Ltd. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination of the position by Skyword Pty Ltd in respect of applicant was not approved.

6. The applicants applied for review on 11 October 2017. At that time the applicant was not in Australia however the secondary applicants were. An officer of the Tribunal contacted the applicant’s representative regarding the applicant’s absence from Australia and advised that in the circumstances the Tribunal would not have jurisdiction in respect of the first named applicant. The representative subsequently advised the Tribunal that the applicant was due to return to Australia before the end of the prescribed period and that another application for review would be lodged. A further application for review was made on 26 October 2017, one day before the prescribed period had ended, and a check of the applicant’s movement records confirmed that he was present in Australia at that time. When considering both review applications, the Tribunal is satisfied that each applicant has made a valid application for review.  The Tribunal therefore has jurisdiction in respect of all the applicants and this decision relates to both review applications. 

7. The applicants appeared before the Tribunal on 10 April 2018 to give evidence and present arguments.

8. The applicants were represented in relation to the review by their registered migration agent. The representative attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the relevant nomination made by Skyword Pty Ltd in respect of the applicant has been approved.

    Nomination of a position

11. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

12. The applicant applied for the visa on the basis of a nomination, in which he was identified as the relevant Subclass 457 visa holder, made by Skyword Pty Ltd on 19 January 2017. The Tribunal is satisfied that the position to which that nomination relates was the subject of the declaration made by the applicant in the visa application. On 25 August 2017, the delegate refused to approve the relevant nomination and consequently the application for the visas was refused.

13. On 11 September 2017, Skyword Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination. On 17 May 2018 the Tribunal affirmed the Department’s decision not to approve the nomination.

14. On 4 June 2018 the Tribunal wrote to the review applicants in accordance with s.359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the Tribunal’s decision not to approve the relevant nomination in respect of the applicant which the Tribunal explained is relevant to the requirement in cl.186.223(2) that the nomination has been approved. The invitation was sent to the representative at the last email address provided in connection with the review. The comments were due on 18 June 2018 however the Tribunal has not received a response.

15. The Tribunal notes that the applicants have already attended a hearing where the issue in the review, namely the requirement for an approved nomination, was discussed with the applicant. The relevant employer nomination in respect of the applicant has not been approved and there is no information before the Tribunal to suggest that this application for review has any prospect of success. In the circumstances, the Tribunal has decided to proceed to decision on the information before it.

16. The Tribunal finds that the nomination of the position made by Skyword Pty Ltd in respect of the applicant has not been approved. As the relevant nomination has not been approved, the requirement in cl.186.223(2) has not been satisfied. Therefore, cl.186.223 is not met.

17. 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.

18. The secondary applicants applied for the visas on the basis of being family members of the first named applicant. The first named applicant does not satisfy the primary criteria for the visa and there is no information before the Tribunal to suggest that any of the secondary applicants meet the primary criteria for the grant of the visa. As the secondary applicants are not members of the family unit of a person who met the primary criteria for the visa, the Tribunal must also affirm the decision in respect of the secondary applicants.  

    DECISION

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

    R. Skaros
    Member