SHARMIN (Migration)

[2022] AATA 4820

SHARMIN (Migration) [2022] AATA 4820 (26 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs FARHANA SHARMIN
Mr MD JAHIRUL ISLAM JEWEL
Miss AARIAH SHARMIN

CASE NUMBER:  1924389

HOME AFFAIRS REFERENCE(S):          BCC2018/5881965

MEMBER:Antonio Dronjic

DATE AND TIME OF

ORAL DECISION AND REASONS:         26 October 2022 at 2:08 pm (VIC time)

DATE OF WRITTEN RECORD:                8 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 08 November 2022 at 3:40pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 –– Student Counsellor – nomination refused – the applicant is not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 186.223

CASES
MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 12 August 2019 to refuse to grant the visa applicants Employer Nomination (Permanent) Subclass 186 visas under the Migration Act 1958 (Cth) (the Act).

2. The delegate refused to grant the visa because the first named applicant (the applicant) did not meet cl.186.223 of Schedule 2 to the Regulations. The delegate found that the appointment, to which the visa application relates, has not been approved by the Minister.

3. The applicants lodged applications for review of the delegate’s decision with the Tribunal on 1 September 2019 and with the applications enclosed a copy of the primary decision record.

4. On 26 September 2022, the Tribunal wrote to the applicants advising that it considered material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend the telephone hearing on 26 October 2022.

5. By letter dated 3 October 2022, and in accordance with section 359A of the Act, the Tribunal invited the applicants to comment on or respond to information that it considered would be the reasons, or part of the reason, for affirming the decision under review. The particulars of the information were:

   ·On 27 December 2018, Medical Training and Development Pty Ltd (“the nominator”) applied to the Department of Home Affairs (“the Department”) to nominate you for the position of Student Counsellor – 272115

   ·On 13 June 2019, the application for approval of the nominated position made by the nominator was refused by the Department. The nominator applied to the Tribunal for merits review of that decision.

   ·On 14 September 2022, the Tribunal affirmed the decision not to approve the nomination. This means that the nomination application relating the position specified in your visa application has not been approved.

   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.

   If the Tribunal were to rely on this information, the Tribunal would accordingly be required to affirm the decision of the delegate on the basis that the first named applicant does not meet the criteria contained within clause 186.223.

   This information is relevant to the second and third named review applicants because cl.186.311 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 second and third named applicants will not be able to meet cl.186.311.

   You are invited to give comments on or respond to the above information in writing…

6. On 17 and 19 October 2022, the applicants responded to the Tribunal letter. In her statement of 17 October 2022, Ms Sharmin outlined her immigration history in Australia and problems she had with her employer.

7. Relying on the authority in MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233, the Tribunal accepts that there is no minimum requirement for a response to s.359A invitation and that any reply directed to the information will constitute a “response”. Accordingly, the Tribunal accepts that the applicants responded to the information contained in s.359A letter.

8. At the hearing on 26 October 2022, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

9. According to the primary decision record you have provided to the Tribunal, the nomination application lodged by Medical Training and Development Pty Ltd was refused by the department on 13 June 2019. You confirmed this in your oral evidence given at today’s hearing. You also gave evidence that, at the time of the Tribunal decision, there is no approved nomination in respect of your application for subclass 186 visa.

10. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 186.223 lodged by Medical Training and Development Pty Ltd on your behalf, has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that you do not meet the requirements of clause 186.223 at the time of its decision.

11. The Tribunal must also affirm the decision not to grant the second and the third  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 the second or third named applicants meet the primary visa criteria for this subclass, or any other subclass within Class EN, in their own right.

    DECISION

12. The Tribunal affirms the decisions under review.

    Antonio Dronjic
    Member