Addinall (Migration)

[2021] AATA 1813

Addinall (Migration) [2021] AATA 1813 (18 May 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Jacques Pierre Addinall Ms Julija Merljak

Miss Jacquelene Addinall Mr Jean-Pierre Addinall

CASE NUMBER:  1811431

HOME AFFAIRS REFERENCE(S):          BCC/20174009345

MEMBER:  Nicola Findson

DATE:  18 May 2021

PLACE OF DECISION:  Perth

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

Statement made on 18 May 2021 at 9:12am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Research and Development Manager – subject of an approved nomination – non-appearance before the Tribunal – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 362B, 379A

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 6 April 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicants applied for the visas on 30 October 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

1. 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.

1. 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 a Research and Development Manager (ANZSCO 132511).

1. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations, because the applicant was not the subject of a nomination approved by the Minister.

1. The applicants applied to the Tribunal for review of the Department’s decision on 23 April 2018, and with the application provided a copy of the delegate’s decision record.

1. On 12 February 2021, the Tribunal wrote to the review applicants by letter addressed to their registered migration agent, advising that it had considered the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 25 March 2021. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

1. The Tribunal notes that no response to the hearing invitation was received by the primary review applicant or the third named applicant and they did not appear before the Tribunal at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the primary review applicant and third named applicant were properly invited to a hearing in accordance with s.379A(5). In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the primary review applicant or the third named review applicant to appear before it.

1. The Tribunal also notes that the second named applicant, in response to the hearing invitation, wrote to the Tribunal on 8 March 2021, via another registered migration agent separately engaged by her, and indicated, among other things, that she did not intend appearing before the Tribunal to give evidence and present arguments.

1. The fourth-named applicant appeared before the Tribunal, by telephone, on 25 March 2021, to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone as it was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the fourth-named applicant was given a fair opportunity to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Nomination of a position

1. 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.

1. 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.

1. On 19 February 2021, the Tribunal wrote to the applicants via their authorised representative, pursuant to s.359A of the Act. This letter followed a decision in a matter (1806990) which related to the nomination of the relevant position by the applicant’s employer, Betta Batteries (Pty) Ltd. The letter invited the applicants to comment or respond to information that the application for approval of the nominated position made by Betta Batteries (Pty) Ltd was refused by a delegate of the Minister, and that although Betta Batteries (Pty) Ltd had sought a review of the refusal decision, the Tribunal had found it had no jurisdiction to review the matter. The letter indicated that this information, if relied upon by the Tribunal, would be the reason or part of the reason to affirm the decision made by the Department to refuse the grant of the visa, because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

1. On 22 February 20201, the second-named review applicant wrote to the Tribunal, via her separately engaged migration agent, confirming that she is a member of the family unit of the primary review applicant under the relevant provision of the Regulations, and that as such she would benefit from a favourable outcome at review. However, the letter indicated that the progress and outcome of the associated nomination and any comment on it was the

responsibility of the primary review applicant and his authorised agent. The letter also requested that the Tribunal provide the second-named review applicant with any future correspondence directly, to “negate reliance on receiving same from the authorised agent and primary visa review applicant”.

1. At the hearing, the Tribunal explained to the fourth named applicant the requirements of cl.186.223. In particular, the Tribunal explained that if it found the applicant was not the subject of an approved nomination it would have to affirm the delegate’s decision. The Tribunal also explained that cl.186.311 requires secondary applicants to be members of a family unit of a person (the applicant) who holds a subclass 186 visa on the basis of satisfying the primary criteria for the grant of the visa. The fourth named applicant indicated that he understood the requirements for the visa.

1. The fourth named applicant told the Tribunal that his father, the primary review applicant, had permanently departed Australia and that he understood the Tribunal’s decision would likely be unfavourable. He told the Tribunal that he had not spoken with any of the other applicants about the review application.

1. On 30 March 2021, the Tribunal wrote to the second-named review applicant, via her authorised representative, pursuant to s.359A of the Act. It is noted that the Tribunal allocated a new case number to the second-named applicant, for administrative purposes following the appointment of a new representative for her, and the s359A letter (as well as other correspondence) was sent to her with that case number reference (2102299). The s.359A letter invited the second named applicant to comment or respond to information that on 30 September 2020, Betta Batteries (Pty) Ltd had withdrawn its review application, and, consequently the decision made by the Department of Home Affairs on 26 February 2018 to refuse the nomination stands. The letter indicated that this information is relevant to the review because cl.186.311 requires that a secondary applicant is a member of the family unit of a primary applicant who holds a subclass 186 visa on the basis of satisfying the primary criteria for the grant of the visa. The letter indicated that as the primary applicant would not satisfy the primary criteria, this would mean that the secondary applicant(s) would not satisfy the secondary criterion in cl.186.311 for the grant of the visa.  The letter indicated that subject to the second-named applicant’s comments or response (requested on or before

   13 April 2021), this information would be the reason or part of the reason for the Tribunal affirming the decision under review. The Tribunal did not receive a response to its letter from the second-named applicant by the due date.

1. The issue in the present case is whether the applicant meets the requirements of cl.186.223.

1. On the basis of the evidence before it, the Tribunal finds that at the time the applicants lodged their visa application on 30 October 2017, the applicant was the subject of a nomination application by Betta Batteries (Pty) Ltd for the position of Research and Development Manager. The Tribunal further finds that the nomination application lodged by Betta Batteries (Pty) Ltd was refused by the Department on 26 February 2018, and, although Betta Batteries (Pty) Ltd sought review of the refused nomination, on 23 October 2020 the Tribunal accepted a withdrawal from Betta Batteries (Pty) Ltd and as a consequence found it no longer had jurisdiction in the matter.

1. As the nomination for the position has not been approved, the Tribunal finds that the requirement in cl.186.223(2) is not met. It follows that cl.186.223 is not met.

1. 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.

1. The Tribunal also finds that as the applicant does not satisfy the primary criteria for the grant of the visa, the secondary applicants do not satisfy the secondary criteria for the visa. Consequently, the secondary applicants do not satisfy cl.186.311 and the decision under review must be affirmed in respect of them.

DECISION

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

Nicola Findson 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.