Boyce (Migration)

[2019] AATA 863

Boyce (Migration) [2019] AATA 863 (6 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Craig Boyce

CASE NUMBER:  1715005

HOME AFFAIRS REFERENCE(S):           BCC2016/3956926

MEMBER:John Cipolla

DATE:6 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 06 March 2019 at 2:51pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – no response to s 359A letter – not entitled to appear before the Tribunal – Temporary Residence Transition stream – Hotel or Motel Manager – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 5 July 2017 to refuse to grant 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 24 November 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 Hotel or Motel Manager with the Coopers Arms Hotel. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination of the position was not approved.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the nomination of the position has been approved.

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.

2. 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.

10.  The applicant applied for the visa on the basis of an employer nomination lodged by the Coopers Arms Hotel. The Tribunal is satisfied on the information before it that the nomination identified the applicant as the relevant Subclass 457 visa holder and that it was in reference to that nomination that the relevant declaration was made by the applicant in the visa application, as required by cl.186.223(1).

11.  The nomination referred to above was refused by the Department on 25 May 2017. Coopers Arms Hotel applied for review of the delegate’s decision not to approve the nomination. On 4 January 2019, the Tribunal confirmed its earlier decision to dismiss the application for review of the Department’s decision to refuse the nomination. On 18 January 2019 Coopers Arms Hotel applied for the review application to be reopened. The Tribunal reviewed its decision to dismiss the application, however determined that no jurisdictional error had occurred.

12.  On 4 January 2019 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting them to provide comments on the information related to the Tribunal’s decision confirming the dismissal of the application for review of the nomination refusal made by the Coopers Arms Hotel Pty Ltd, which the Tribunal explained is relevant to the requirement in cl.186.223(2) which requires the relevant nomination to be approved.

13.  The invitation was sent to the applicant at the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 18 January 2019 the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

14.  An examination of the Tribunal's file indicates that the review applicant did not comment on the information within the prescribed period allowed, and no extension had been 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.

15.  The Tribunal is satisfied that the invitation to comment was correctly sent to the authorised recipient’s email and that the applicant was properly informed that a non-response may result in the Tribunal proceeding to a decision on the information before it. Furthermore, the information before the Tribunal indicates that the relevant nomination has not been approved, and given the applicant would be unable to rely on any other nomination to succeed in this review, the Tribunal considers it futile to delay making its decision in this case. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

16.  As the relevant nomination has not been approved it follows that the applicant does not meet the requirements of cl.186.223(2). Consequently, cl.186.223 has not been met as a whole.

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.

DECISION

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

John Cipolla
Senior 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.