Benedicto (Migration)

[2019] AATA 6718

Benedicto (Migration) [2019] AATA 6718 (9 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Carlo Angelo Ayuco Benedicto

CASE NUMBER:  1722407

HOME AFFAIRS REFERENCE(S):          BCC2016/3090545

MEMBER:Karen McNamara

DATE:9 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 09 December 2019 at 11:55am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Training and Development Professional – no approved nomination – review of nomination dismissed – secondary applicants not included in review application – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 494C
Migration Regulations 1994, Schedule 2, cl 186.223; rr 1.13, 4.10

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 Immigration and Border Protection on 30 August 2017 to refuse to grant Mr Carlo Angelo Ayuco Benedicto (the applicant) an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 September 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 (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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Training and Development Professional (ANZSCO 223311).

5. On 30 August 2017, the delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because on 16 June 2017, the nomination lodged by Miranda Family Holdings Pty Ltd, was refused by a delegate of the Minister for Immigration and Border Protection.

6. Mr Carlo Angelo Ayuco Benedicto, applied to the Tribunal on 20 September 2017 for review of the delegate’s decision.

7. On 10 October 2017, the Tribunal received an email from the applicant’s migration agent advising that secondary applicants had “been inadvertently left out of the AAT appeal application” and that the applicant wished them to be included in the review application. 

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl.186.223 of Schedule 2 to the Regulations.

    Nomination of a position

11. 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.

12. 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 r.1.13A and r.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.

13. On the 18 November 2019, the Tribunal confirmed the dismissal of the application for review of the nomination refusal made by Miranda Family Holdings Pty Ltd, in respect of the  applicant. As the nomination was refused by the delegate and the application for review of the delegate’s decision dismissed, regulation 186.223(2) is not met.

14. On 18 November 2019, the Tribunal wrote to Mr Carlo Angelo Ayuco Benedicto, pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited Mr Carlo Angelo Ayuco Benedicto to comment on or respond to information which the Tribunal considered would, subject to his comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to dismiss the application for review of the nomination refusal made by Miranda Family Holdings Pty Ltd. 

15. The Tribunal explained that this was relevant to Mr Carlo Angelo Ayuco Benedicto meeting cl.186.223(2) which requires the nomination in relation to Mr Carlo Angelo Ayuco Benedicto, to be approved. As the nomination was not approved and the application for review made by the nominator (Miranda Family Holdings Pty Ltd) was dismissed, regulation cl.186.223(2) is not met.

16. 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 2 December 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and that Mr Carlo Angelo Ayuco Benedicto would lose any entitlement he might otherwise have had under the Act.

17. Mr Carlo Angelo Ayuco Benedicto, has not provided the comments within the prescribed period and no extension has been sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review 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 has decided to proceed to decision without taking further steps to obtain the comments.

18. Having considered the evidence before it, the Tribunal finds that Mr Carlo Angelo Ayuco Benedicto does not satisfy cl 186.223(2). Therefore, cl.186.223 is not met.

19. Mr Carlo Angelo Ayuco Benedicto, 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.

    Jurisdiction in relation to the secondary applicants

20. Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994, an application for review of this decision had to be made within 21 days after the applicants were notified of the decision in accordance with the statutory requirements.

21. The material before the Tribunal indicates that the applicants were notified of the decision by letter dated 30 August 2017 and dispatched by email. The Tribunal is satisfied that the applicants were notified of the decision in accordance with the statutory requirements.

22. The Tribunal finds that the applicants are taken to have been notified of the decision on      30 August 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on 20 September 2017.

23. The Tribunal notes that the applicant lodged an application for review with the Tribunal on 20 September 2017 and that the secondary applicants were not included in this application. 

24. As the request to include the secondary applicants with the applicant’s application for review was not received by the Tribunal until 10 October 2017, it follows that the secondary applicants’ application for review, was not made in accordance with the relevant legislation and as such the Tribunal has no jurisdiction in relation to the secondary applicants.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Karen McNamara
    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.