Ah-Fock (Migration)

[2021] AATA 5600

Ah-Fock (Migration) [2021] AATA 5600 (23 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Marie Francina Georgina Ah-Fock
Mr Michael Ah-Fock
Miss Marie Jenny Melanie Ah-Fock
Mr Jean Jordan Ah-Fock

CASE NUMBER:  1812082

HOME AFFAIRS REFERENCE(S):          BCC2016/4072744

MEMBER:Amanda Mendes Da Costa

DATE:23 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 23 April 2021 at 2.51pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Cook – applicant failed to provide the requested information – nomination refused– the applicant is not the subject of an approved nomination– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 1.13, Schedule 2, cl 186.223

CASES
Hasran v MIAC [2010] FCAFC 40

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 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).

2. The applicants applied for the visas on 2 December 2016. 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 Cook (ANZSCO 351411).

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 applicant was not the subject of an approved nomination.

6. On 26 March 2021 the Tribunal wrote to the applicant (pursuant to s.359A of the Act) inviting him to comment on or respond to information which it considered would, subject to the applicant’s comments, be the reason or part of the reason for affirming the decision under review.  The particulars of the information were that the application for approval of the nominated position for the applicant, made by CICCO Enterprises Pty Ltd  (the nominator) was refused by the Department. The nominator sought a review of that decision with the Tribunal, but on 29 September 2020 the Tribunal found that it had no jurisdiction to determine the nomination refusal decision. And this meant that the nominator’s application for the approved decision had not been approved.

7. The Tribunal explained to the applicants that this information was relevant to the review because it was a requirement for the grant of the visa that the position specified in the  applicant’s visa application was the subject of an approved nomination.  The Tribunal further explained that if it relied on this information in making its decision, it may find that the position specified in his visa application was not the subject of an approved nomination.  This would mean that the applicant did not satisfy a requirement for the grant of the visa, and that the Tribunal must affirm the decision under review.

8. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 9 April 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicants would lose any entitlement the might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The applicants have not provided the comments or response within the prescribed period and no extension was either sought or granted.  In these circumstances s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal further notes that the applicants have not provided any response to its invitation dated 25 March 2021 and has not provided any additional material to the Tribunal since that date. In these circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the comments or response.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

13. 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.

14. 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.

15. On the evidence before it, the Tribunal is satisfied that the application for approval of the nominated position for the applicant, made by CICCO Enterprises Pty Ltd (the nominator) was refused by the Department. The nominator sought a review of that decision with the Tribunal, but on 29 September 2020 the Tribunal determined that it had no jurisdiction to determine the nomination refusal decision. Accordingly, the Tribunal finds that the nominator’s application for the approved decision has not been approved.

16. The Tribunal therefore finds that the position specified in the applicant’s visa application is not the subject of an approved nomination he does not meet the requirements of cl 457.223.

17. 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.

18. As the Tribunal has found that the first named applicant does not satisfy the primary criteria for the grant of a Subclass 186 visa, it does not consider that the second, third and fourth named applicants meet the requirements for the grant of the visas as members of the family unit of a person who has satisfied the primary criteria for the grant of the visa.

    DECISION

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

    Amanda Mendes Da Costa
    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.