Tahsin (Migration)

[2019] AATA 4703

Tahsin (Migration) [2019] AATA 4703 (11 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammad Tahsin
Mrs Tahsina Arshad Ome
Ms Aaliyah Ali Ahmed
Ms Ansharaah Ali Ahmed

CASE NUMBER:  1804882

HOME AFFAIRS REFERENCE(S):           BCC2017/2235084

MEMBER:R. Skaros

DATE:11 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 July 2019 at 3:55pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – employer’s nomination application refused – application for review of refusal withdrawn – applicant’s request to Minister – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351, 359A, 376

Migration Regulations 1994 (Cth), 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 5 February 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 24 June 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 Café or Restaurant Manager with Tasne Enterprise Pty Ltd.

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 lodged by Tasne Enterprise Pty Ltd in relation to the applicant was not approved.

6. On 26 March 2019 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them comment on or respond to information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the withdrawal of the application for review of the nomination refusal made by Tasne Enterprise Pty Ltd, which the Tribunal explained is relevant because one of the requirements for the grant of the visa is that the relevant nomination has been approved.

7. The applicant responded to the Tribunal on 9 April 2019 stating that he would like to proceed with his review application in order to seek Ministerial intervention under s.351 of the Act. In addition, the applicant informed the Tribunal that he has commenced full time work as a Restaurant Manager at the Workmen’s Club in Lithgow.

8. The applicant appeared before the Tribunal by telephone on 11 June 2019 to give evidence and present arguments.

9. The Tribunal notes that during the review it received information from the Department which was the subject of a certificate under s.376 of the Act. At the hearing, the Tribunal informed the applicant of the certificate and explained to him that the information to which the certificate relates is not relevant to the issue on which his case turns, which relates to whether the relevant nomination has been approved. The Tribunal notes that the information relates to allegations received by the Department regarding the applicant’s past employment with the nominator, an alleged financial arrangement and the conduct of the nominating employer, none of which is relevant to the issue in the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the associated nomination has been approved.

    Nomination of a position

12. 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. In addition, this criterion also requires that the nomination has been approved.

13. The applicant applied for the visa on the basis of a nomination of a position made by Tasne Enterprise Pty Ltd, which the applicant identified in the visa application form as having transaction reference number EGOF04G9GG (the associated nomination). Departmental records indicate that on 15 December 2017 the associated nomination was refused by the Department.

14. On 15 December 2017, the Department sent the applicant a natural justice letter inviting the applicant to comment on the refusal of the associated nomination within 28 days. The applicant did not respond and consequently the delegate made a decision to refuse to grant the visa.

15. The applicant applied for review of the decision in relation to the refusal of his visa. The nominator had also lodged a review of the decision not to approve the associated nomination, however, that review application has since been withdrawn. In response to the Tribunal’s invitation to comment on the information relating to the withdrawal of the review of the nomination refusal, the applicant indicated that he wished to continue with his review application in order to seek Ministerial intervention.

16. At the hearing, the Tribunal explained to the applicant the requirements in cl.186.223 and discussed with him the evidence before it which indicates that he does not meet that requirement. In response, the applicant stated that he worked for the nominating employer for almost four years on a full time basis. He stated that he was a committed employee, paid his taxes and was told by the nominator that they would get approved to sponsor him. He stated that it was not his fault that the nominator was unable to continue with the application. The applicant also gave evidence that he ceased working for the nominator after the nomination was refused and that has been working for another business which has no connection with the nominator.

17. The Tribunal acknowledged the applicant’s evidence and noted that the issue before it relates to whether there is an approved nomination. The applicant indicated that he understood. The Tribunal has had regard to the applicant’s evidence regarding his past employment with the nominator and his current employment circumstances. However, as explained to the applicant at the hearing, the Tribunal has no discretion in these matters and must make its decision in accordance with the relevant legislative provision.

18. In this case, the nomination has been refused by the Department and review of the nomination refusal has now been withdrawn, meaning the applicant has no prospect of meeting the requirements in cl.186.223. As the relevant nomination has not been approved, it follows that the applicant does not meet the requirements of cl.186.223(2). Therefore, cl.186.223 has not been met as a whole.

19. 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.

20. The secondary applicants applied for the visa on the basis of being members of the first named applicant’s family unit. The first named applicant does not meet the primary requirements for the visa and there is no evidence before the Tribunal to suggest that any of the secondary applicants meet the primary requirements for the visa. In the circumstances, the Tribunal must also affirm the decision in respect of the secondary applicants.

21. The Tribunal acknowledges the applicant’s submission that he intends to make a request to the Minister and notes that this decision will enable the applicant to make the relevant Ministerial request, under s.351 of the Act, should he so wish.

    DECISION

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

    R. Skaros
    Senior 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.