Sohail (Migration)

[2023] AATA 3643

Sohail (Migration) [2023] AATA 3643 (20 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amina Sohail
Mr Muhammad Sohail Mehdi
Miss Mehpara Sohail
Mr Muhammad Husnain Sohail

REPRESENTATIVE:  Mr Amandeep Singh Hundal (MARN: 1687223)

CASE NUMBER:  1936457

HOME AFFAIRS REFERENCE(S):          BCC2018/214671

MEMBER:Katie Malyon

DATE:20 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 20 October 2023 at 2:20 pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Recruitment Consultant – no approved nomination – adviser sought repeat nomination application for the same position – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 186.223; rr 1.13, 5.19

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Singh v MIBP [2017] FCAFC 105     

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 11 December 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants - Pakistani nationals Amina Sohail, Muhammad Sohail Medhi and Mehpara Sohail - applied for the visas on 14 January 2018.  Following lodgement of the visa application with the Department, Mrs Sohail gave birth in Australia to her son Muhammad Husnain Sohail on 10 April 2018 and he was added to the applicants’ pending Subclass 186 visa application.  At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. Criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

4. In the present case, Mrs Sohail is the primary applicant.  She seeking the visa in the Temporary Residence Transition stream to continue working in the nominated position of Recruitment Consultant ANZSCO 223112 with her nominator, Aus Migration and Education Pty Ltd (the Company).

5. The delegate refused to grant the visas on the basis Mrs Sohail did not meet cl 186.223(2) of Schedule 2 to the Regulations because her Subclass 186 visa application was not the subject of an approved nomination by the Company. The Company’s nomination had been refused by the Department. Following refusal of its nomination, the Company sought review in the Tribunal of that refusal and, subsequently, the applicants also sought review of their related visa refusal.

6. On 17 January 2022 (that is, just over 2 years after lodgement of their review application), Amina Sohail and Muhammad Sohail Medhi advised the Tribunal by way of an email (from Mrs Sohail’s email address as notified in the review application) that they have a new home address in Greendale Bvd, Pakenham.  They requested the Tribunal provide them with a Medicare letter acknowledging their new home address.  Coincidentally, Mrs Sohail’s email address is the same email address at that of their representative, registered migration agent Amandeep Singh Hundal.  The Tribunal forwarded the requested Medicare letter to the applicants’ email address on 18 January 2022.  

   Hearing invitation

7. On 24 August 2023, the Tribunal invited the applicants to attend a MS Teams videoconference hearing on 15 September 2023.  The Tribunal’s hearing invitation was sent to the applicants via their representative at his email address indicated in the review application.  As noted above at para [6], this is the same email address as that of the applicants as stated in their review application.      

   The Tribunal’s s 359A letter

8. On 28 August 2023, the Tribunal wrote to the applicants under s 359A of the Act inviting them to comment on or respond to information which the Tribunal considers would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review.

9. The particulars of the information set out in the Tribunal’s s 359A letter are:

   ·at the time you made your Subclass 186 visa application on 14 January 2018, you declared in your visa application that you were nominated by the Company;

   ·the Company’s nomination was refused by the Department on 28 October 2019;

   ·as a consequence, the delegate refused your Subclass 186 visa application on 11 December 2019 on the basis that the Company’s nomination was not approved. This was because you did not meet cl 186.223 of Schedule 2 to the Regulations;

   ·on 16 November 2019, the Company sought review of the delegate’s refusal of its nomination at the Tribunal and you also sought review of the delegate’s refusal of your Subclass 186 visa application;

   ·on 23 May 2023, the Tribunal affirmed the decision not to approve the Company’s nomination; and,

   ·accordingly, there is currently no approved nomination by the Company in relation to you.

10. In its letter, the Tribunal explained that this information is relevant to the review because

    
    

    cl 186.223 of Schedule 2 to the Regulations requires the primary visa application to be the subject of an approved nomination. The Tribunal stated that, if this information is relied on in making its decision, it may find that Mrs Sohail’s visa application is not the subject of an approved nomination and that she does not satisfy cl 186.223. Therefore, the Tribunal must affirm the decision under review. The applicants were invited to provide a response, or request further time to respond to the information, on or before 11 September 2023.

11. The Tribunal is satisfied that its s 359A letter was properly dispatched to the email address of applicants’ representative, Amandeep Singh Hundal, as advised in review application [email protected].  As noted above, this is also the same email address of the applicants as indicated in their review application lodged with the Tribunal: it was the email address to which the Tribunal sent the applicants their requested Medicare letter on 28 January 2022. 

12. On 29 August 2023, the Tribunal received an email from Shamraiz Medhi who claims to be a Director of the Company.  Mr Medhi states that the Company did not receive any email or decision in relation to refusal of its nomination application.  He states that the Company’s former email address [email protected] was deactivated in 2022 and all emails were directed to the email address [email protected].  Mr Mehdi requested the Tribunal afford the Company and the applicants an opportunity to provide submissions in supporting documentation regarding review of the Company’s nomination refusal before conducting its review of the visa refusal.  He also requested a copy of the Tribunal’s decision of 23 May 2023 affirming the delegate’s decision to refuse the Company’s nomination.  The Tribunal notes in passing that Mr Mehdi’s email address [email protected] is identical to that of both the applicants and their representative Mr Hundal.

13. Following review of ASIC information in relation to the directors of the Company and having satisfied itself that Mr Mehdi is a director of the Company, the Tribunal forwarded to Mr Mehdi by email on 29 August 2023 a copy of its decision affirming the delegate’s decision to refuse the Company’s related nomination (Case No 1932604). The ASIC records confirm the Company relocated its office from the Melbourne VIC 3000 to Pakenham VIC 3810 effective 15 October 2020. The Tribunal notes it affirmed refusal of the Company’s nomination on the basis that the Company failed to respond to the Tribunal’s s 359(2) request for current and updated information demonstrating that its nomination meets all of the relevant requirements of criteria in reg 5.19 of the Regulations for approval of its nomination.

14. Relevant to the current review, the Tribunal indicated in its email of 29 August 2023 to the Company’s director Mr Medhi that the applicants’ hearing will proceed as scheduled on 15 September 2023 and, in the circumstances, the applicants or their representative should lodge a response to information set out in the Tribunal’s s 359A letter on or before 11 September 2023.

15. The Tribunal sent an invitation on 4 September 2023 to the representative at his email address [email protected] inviting him and the applicants to attend a test session for the MS Teams videoconference hearing scheduled for 15 September 2023.  The test session was schedule to take place on 7 September 2023 at 12 noon.  No parties attended the MS Teams test session.  The Tribunal attempted to call Mrs Sohail twice on the telephone number provided in her review application lodged with the Tribunal.  No response was received. 

16. On 12 September 2023 (that is, the day after the due date for a response to information set out in the Tribunal’s s 359A letter), Mr Mehdi responded to the Tribunal’s MS Teams test session invitation of 4 September 2023. He requested that the Tribunal consider ‘conducting a Nomination review before the visa review to provide a fair opportunity to determine the Nomination are (sic) requirement before moving to the visa hearing’. He reiterated that we did not receive any email in relation to the Nomination review hearing.

17. The Tribunal emailed the applicants’ representative on 12 December 2023 to confirm that the hearing of refusal of their Subclass 186 visa would proceed on Friday, 15 September 2023. It did so having received a response, albeit it from Company director Mr Mehdi, to the Tribunal’s s 359A letter.

    Hearing - 15 September 2023

18. The applicants did not attend the hearing on 15 September 2023.  The Tribunal is satisfied that its hearing invitation letter was sent to the email address nominated by the applicants for communications with them.  As noted above, this was also the email address not only of their representative at the time of lodgement of the review application but also, subsequently, the email address of the director of the Company.

19. Further, the Tribunal notes that 2 SMS messages were sent to the nominated mobile numbers of the representative and Mrs Sohail on 8 September 2023 at 11:02 am and again on 14 September 2023 at 11:01 am to remind them about the scheduled hearing.  When neither the applicants nor the representative attended the scheduled hearing, a hearing attendant attempted to call the representative and Mrs Sohail at 10:05 am, 10:15 am and 10:25 am but all calls went to voicemails.  

20. The Tribunal did not receive any reasons for the applicants’ non-attendance at the scheduled hearing.  To date, no further communication from the applicants, their representative or, indeed, the director of the Company Mr Mehdi.

21. The Tribunal has considered whether it should adjourn the review under s 363(1)(b) of the Act to allow the applicants additional time in which to provide further evidence to support their review application. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. 

    [1] [2002] FCA 617.

    [2] [2012] FMCA 28.

22. In the circumstances of this case, the Tribunal considers that the applicants and their appointed representative have had sufficient time to provide the requested information or seek an extension of time in which to do so.  It also notes that review of Departmental records confirms that all of the applicants lodged a Subclass 491 Skilled Work Regional (Provisional) visa application on 27 March 2023 which is currently under consideration by the Department. 

23. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with
    s 359C of the Act.

24. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The issue in the present case is whether, as the primary applicant, Mrs Sohail satisfies the requirements of cl 186.223 of Schedule 2 to the Regulations.

    Nomination of a position

26. 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 position that was the subject of the declaration that was required to be made as part of the current visa application.

27. 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 reg 1.13A and reg 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.

28. As stated in the Tribunal’s s 359A letter, the Company’s nomination was refused by the Department on 28 October 2018 and, consequently, the applicants’ Subclass 186 visa application was refused on the basis that there was no approved nomination as required by
    cl 186.223(2) of Schedule 2 to the Regulations. Although the Company sought review of the delegate’s refusal of its decision on 16 November 2019, the Tribunal affirmed refusal of the nomination on 23 May 2023.

29. In their visa application lodged on 14 January 2018, the applicants declared that the position to which their application relates is a position nominated under reg 5.19 and that they have provided details in their visa application of the nomination which has been lodged with the Department. In their visa application, the applicants declared the reference number of the Company’s related nomination is EGOGG26HAW. However, this is the nomination that was refused by the Department on 16 November 2019 and that decision was affirmed by the Tribunal on 23 May 2023. As such, the position to which the applicants’ Subclass 186 visa application relates cannot meet the criteria in cl 186.223(2) of Schedule 2 to the Regulations.

30. As set out in the decision in the Full Federal Court in Singh v MIBP [2017] FCAFC 105 (Singh’s case), this is a ‘once off’ process.  Justice Mortimer states in Singh’s case the employer nomination scheme in reg 5.19 does not contemplate that an employer can file repeated nomination applications in relation to the same position and the same visa applicant: para [89].  Even a new nomination in respect of the same position made by the same employer could also not be relied upon to meet the Schedule 2 criterion.

31. There is no evidence before the Tribunal that the Company’s nomination EGOGG26HAW has been approved: on the contrary, and as set out in its s 359A letter, the Tribunal affirmed the decision not to approve that nomination on 23 May 2023. Therefore, cl 186.223(2) of Schedule 2 to the Regulations is not met by Mrs Sohail.

32. Mrs Sohail 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.

33. The applications of the second, third and fourth named applicants have been made on the basis that they are family members of a person who meets the primary criteria for grant of the visa.  Since Mrs Sohail does not meet a criterion for approval of the visa, the delegate’s decision to refuse their visa applications must also be affirmed. 

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from the Migration Regulations 1994

    Schedule 2

    …
    
    

    Subclass 186 - Employer Nomination Scheme

    186.22 Criteria for Temporary Residence Transition stream

    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.

    oOOo