Sultana (Migration)

[2023] AATA 4266

Sultana (Migration) [2023] AATA 4266 (11 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Farheen Sultana
Mr Mudassir Hasan
Master Affan Hasan
Miss Fiza Hasan

REPRESENTATIVE:  Sophie Gao (MARN: 1792725)

CASE NUMBER:  2102200

HOME AFFAIRS REFERENCE(S):          BCC2019/5639927

MEMBER:Terrence Baxter

DATE:11 December 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 11 December 2023 at 11:01am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – accountant – subject of approved position nomination – refusal of related nomination application affirmed in separate review – consent to decision without hearing – members of family unit – one child an Australian citizen – no evidence or submissions about possible hardship – open to applicants to request ministerial interventional directly – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359A, 363(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223(2), 186.311

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 16 February 2021 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 applicants applied for the visas on 8 November 2019. 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 (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 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 Accountant (General) for Aussie Marketing Force Pty Ltd (the nominator).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 5 June 2020 and that accordingly the applicant did not satisfy cl.186.223(2) and did not meet cl.186.223 as a whole as required.

6. The delegate also found that the second named, third named and fourth named applicants could not be granted Subclass 186 visas, as they did not meet the secondary visa criterion (cl 186.311) requiring each of them to be a member of the family unit of a person who has met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants lodged an application for review of the delegate’s decisions with the Tribunal on 24 February 2021.

8. On 16 October 2023, the Tribunal wrote to the applicants advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to appear before the Tribunal by video conference to give evidence and present arguments relating to the issues at a hearing scheduled for 7 November 2023. The hearing invitation was forwarded to the applicants’ email address specified in the review application.

9. The applicants were represented in relation to the review by their registration migration agent Ms Sophie Gao of Top Global Australia Pty Ltd from 20 October 2023.

10. On 21 October 2023, the applicants provided a response to the hearing invitation, sent by email from the applicants’ email address, advising that all four applicants would attend the hearing scheduled for 7 November 2023.

11. On 31 October 2023, the applicants provided an amended response to the hearing invitation, also sent by email from the applicants’ email address with a CC to the recently appointed representative. That response stated that the applicants would not participate in the hearing on 7 November 2023 and consented to the Tribunal making a decision on the papers without taking further steps to allow the applicants to appear. The response was signed by the applicant. The applicant stated that she was going through anxiety and panic attacks and was not sure that she could handle the hearing.

12. The Tribunal is satisfied that the applicants consented to the Tribunal making a decision without the applicants appearing before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

15. 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.

16. 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.

17. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the position of Accountant (General) approved, with the applicant as nominee, on 8 November 2019. The nomination application was refused on 5 June 2020 and the nominator sought review of that decision with the Tribunal on 16 June 2020.

18. On 30 November 2023, the Tribunal affirmed the decision not to grant the nomination application.

19. On 1 December 2023, the Tribunal wrote to the applicants pursuant to s 359A of the Act inviting them to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 30 November 2023, the Tribunal affirmed the decision not to grant an
    Employer Nomination lodged by Aussie Marketing Force Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for
    the purposes of satisfying cl.186.223(1).

    If we rely on this information in making our decision, we may find that you do not meet
    cl.186.223(2), which requires the nomination be approved, and affirm the decision under
    review.

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

    Your comments or response should be received by 15 December 2023.

20. The Tribunal is satisfied that this invitation was properly dispatched to the applicants’ email address. On 8 December 2023, the representative advised that the Tribunal that the applicants confirmed that no additional comments would be provided in response to the Tribunal’s invitation of 1 December 2023 and that they requested that the Tribunal expedite the decision-making process at the earliest convenience.

21. The Tribunal has considered whether it should take further action to obtain the applicants’ views on the information referred to in paragraph 19 above. Although the applicants have not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicants have been aware since 16 February 2021 of the reasons for the visa application being refused, and also that the implications of not providing the information requested in the invitation from the Tribunal of 1 December 2023 were set out in that correspondence.

22. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicants’ views on the information referred to in the invitation from the Tribunal of 1 December 2023 or to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cl 186.223 and cl 186.311 of Schedule 2 to the Regulations.

23. The Tribunal notes that the application for nomination for the position of Accountant (General) has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application. Accordingly, cl 186.223(2) is not met.

24. Therefore, cl 186.223 is not met in respect of the applicant.

25. 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.

26. In relation to the second named, third named and fourth named applicants, the Tribunal notes that cl 186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 186 visa and is not the holder of a Subclass 186 visa, it follows that the second named, third named and fourth named applicants do not satisfy the requirements of cl 186.311. The Tribunal finds accordingly.

    Possible referral for Ministerial intervention

27. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

28. In deciding whether to refer this matter to the Minister for consideration under s 351 of the Act, the Tribunal has considered the Minister’s guidelines on ministerial powers (the Minister’s Guidelines) contained in the Department’s Procedural Instructions. The Tribunal notes that the Department’s policy is not binding on the Tribunal, but the Tribunal may refer to it. The Minister’s Guidelines state that cases that have one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of the intervention powers.

29. Examples of the unique or exceptional circumstances listed in the Minister’s Guidelines include:

    ·     strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

    ·     compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.

    ·     exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.

    ·     circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

30. The Tribunal notes that the fourth named applicant is an Australian citizen. It may be the case that, if the first named, second named and third named applicants are required to leave Australia, the fourth named applicant would be required to either travel with them to a country in which she has not previously resided or to be separated from her parents at a very young age. This could result in serious, ongoing and irreversible harm and continuing hardship for the fourth named applicant. However, no evidence to support such a finding has been provided to the Tribunal. This matter could have been canvassed with the applicants at the hearing, but they declined to participate in a hearing.

31. In the absence of any evidence or submissions in relation to this aspect of the matter, the Tribunal has decided not to refer the matter for possible Ministerial intervention under s 351 of the Act. The Tribunal notes that it is open to the applicants to make a direct request for Ministerial intervention.

    DECISION

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

    Terrence Baxter
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.