ZISHAN (Migration)

[2020] AATA 6209

ZISHAN (Migration) [2020] AATA 6209 (11 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sami Zishan
Mrs Kanza Zishan
Ms Arfa Zishan

CASE NUMBER:  1801958

HOME AFFAIRS REFERENCE(S):          BCC2017/3325776

MEMBER:Marten Kennedy

DATE:11 January 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 11 January 2021 at 5:25pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Stream) – temporary residence transition stream – contact centre manager – no evidence of nomination application – proposed sponsor in liquidation and applicant working in another work sector – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 186.212

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 January 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 12 September 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 Contact Centre Manager for Get Qualified Australia Perth Pty Ltd.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.212 of Schedule 2 to the Regulations because there was no evidence that the identified employer had lodged an application for approval of a nominated position in respect of the primary visa applicant. In light of this, the delegate concluded that they could not be satisfied that the position to which the application related would provide the primary applicant with the employment referred to in the application for approval.

6. In this matter, I wrote to the applicant on 17 November 2020 using the procedure provided for in section 359(2) of the Migration Act. I invited the applicant to provide information supported by corroborating documentary evidence to demonstrate that the position to which the application related was referred to in an application for approval of a nominated position made by that employer.

7. The applicant wrote to the Tribunal on 1 December 2020.  In the applicant’s written submission, the applicant outlined his qualifications from Australia and overseas and provided an explanation about the circumstances in which his proposed nominator failed to sponsor him, despite him working there for many years.  The applicant explained the proposed sponsor was liquidated.  The applicant describes moving to regional Australia to look for work.  The applicant described eventually finding work in community services in Alice Springs and the stressors and strains associated with his immigration problem and difficulty finding work.

8. Inevitably, given that background, the applicant has not provided information (supported by corroborating documentary evidence) demonstrating that the position to which the application related was referred to in an application for approval of a nominated position made by Get Qualified Australia Perth Pty Ltd. The applicant has not therefore provided the information required by the notice issued in accordance with section 359(2). As explained in the letter, in these circumstances the applicant loses his right to a hearing. A hearing would be futile in the particular circumstances of this case.

9. The applicant asks that the Tribunal afford him 45 days to reapply for a visa with the support of his new employer. This request misunderstands the role of the Tribunal in reviews of this nature.  The applicant may wish to seek advice from a registered migration agent as to what his next steps should be in pursuing his objective of permanent migration to Australia.

   CONSIDERATION

10. Clause 186.212 requires that the nominated position will provide the applicant with the employment referred to in the related nomination application.  The issue in the present case is whether the position to which the application relates will provide the applicant with the employment referred to in the application for approval.

11. In this case, there is no application for approval, and so it follows that I cannot be satisfied that the employment referred to in the non-existent application will be provided to the applicant.  Furthermore, and in any event, the applicant has indicated the employer has been liquidated and cannot provide him with any employment.

12. In these circumstances, the applicant manifestly does not satisfy cl.186.212 to Schedule 2 to the Regulations. 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.

13. As the primary visa applicant does not meet the primary criteria for the grant of the visa, the secondary visa applicants cannot meet the secondary criteria for the grant of the visas (as members of the family unit of a person who holds subclass 186 visa on the basis of satisfying the primary criteria).  As such, I must also affirm the decision to refuse to grant the secondary visa applicants visas.

    DECISION

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

    Marten Kennedy
    Member