Agula (Migration)

[2019] AATA 2269

Agula (Migration) [2019] AATA 2269 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kiran Raj Agula (the applicant)
Ms Suguna Swaroop Kondur (second applicant)
Mr Tavish Raj Agula (third applicant)

CASE NUMBER:  1816269

HOME AFFAIRS REFERENCE(S):           BCC2017/4377040

MEMBER:Jane Bell

DATE: 3 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 June 2019 at 2:20pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – nomination application refused – nominator withdrawn its application for review – applicant no longer an employee of the nominator – extension of time – applicant had fair opportunity to provide information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359C(1), 360(3), 363(1)(b)
Migration Regulations 1994 (Cth), Schedule 2 cls 186.223, 186.233, 186.242, 186.311, rr 1.13A, 1.13B, 5.19(4)

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Yang v MIAC [2010] FMCA 890

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 15 May 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under section 65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 November 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 the Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet clause186.223 of Schedule 2 to the Regulations because on 4 April 2018, the nomination application lodged by the nominator, MR SMOKE STACK PTY LTD, was refused by the Department of Home Affairs. Furthermore, on 4 April 2018, the applicant, was issued with an invitation to comment on the nomination refusal letter within 28 days. The Department records reveal that no further documentation/information was received. Since the nomination to which the visa application by the applicant relates was not approved, the applicant did not meet clause 186.223.

6. The delegate also assessed the applicant’s claims under the Direct Entry stream. Under clause 186.233 the position to which a visa application relates must have been nominated and approved under subregulation 5.19(4). Since the correlating nomination did not seek to meet the requirements of and was not assessed under subregulation 5.19(4), the applicant does not meet clause 186.233. Since clause 186.233 is not satisfied, then the criteria to grant the Employer Nomination Scheme (Subclass 186) visa in the Direct Entry stream are not satisfied. Furthermore the correlating position was not nominated by an employer in accordance with a labour agreement so the applicant does not meet the requirements of clause 186.242.

7. As clauses 186.223, 186.233 and 186.242 are not met by the applicant, then the criteria for the grant of an Employer Nomination Scheme visa are not met by the applicant and therefore the delegate refused the applicant for an Employer Nomination Scheme visa.

8. With respect to the second applicant and third applicant, pursuant to clause 186.311 they are not a member of a family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. Therefore clause 186.311 is not satisfied and the criteria for the grant of an Employer Nomination Scheme (Subclass 186) visa are not satisfied.

9. The applicants were represented in relation to the review by their registered migration agent.

10. The Tribunal wrote to the applicant on 8 May 2019 inviting comment on or a response by 22 May 2019 to information received that the nominator had withdrawn its application for review. On 23 May 2019 the Tribunal received a phone call and an email from the applicant (together with a medical certificate) seeking an extension of time (due to illness) in which to respond to the Tribunal’s letter of 8 May 2019. The Tribunal advised the applicant that the response period is prescribed in legislation and therefore the applicant had lost his hearing rights. He was advised that he was however still able to submit any documents in support of his application and that he should do so as soon as possible. The Tribunal gave the applicant an extra 10 days in which to provide additional information but to date none has been received.

11. As the applicant failed to respond within the prescribed period, subsection 359C(1) applies and pursuant to subsection 360(3), the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890.

12. The Tribunal has given consideration to whether it should adjourn the review under paragraph 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

13. 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. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

14. The Tribunal considered whether, in the circumstances of this case, that information is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

15. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing. The Tribunal is not disposed to delaying making a decision indefinitely.

16. Accordingly, the Tribunal has decided not to exercise its discretion under paragraph 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time to provide further information.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is the application for approval of the nominated position made by MR SMOKE STACK PTY LTD was refused by a delegate of the Minister on 15 May 2018. The nominator sought a review of that decision but then withdrew that application for review because the applicant was no longer an employee. This means that the nominator’s application for the nominated position has not been approved.

19. 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.

20. In addition, this criteria 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 regulation 1.13A and regulation 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.

21. The applicant does not satisfy the criterion as the nomination was not approved. The nominator subsequently sought a review of that decision but then withdrew that application for review advising the Department on 20 June 2018 that the applicant was no longer an employee of the nominator as of 1 April 2018 and that it therefore wished to withdraw its application for review.

22. Therefore, clause 186.223 is not met.

23. 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.

24. With respect to the second applicant and third applicant, pursuant to clause 186.311 they are not a member of a family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. Therefore clause 186.311 is not satisfied and the criteria for the grant of an Employer Nomination Scheme (Subclass 186) visa are not satisfied.

    DECISION

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

    Jane Bell
    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.