Burapat (Migration)

[2020] AATA 5693

Burapat (Migration) [2020] AATA 5693 (1 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chyarop Burapat
Ms Worakamon Liengraksa
Miss Mylene Burapat

CASE NUMBER:  1726186

HOME AFFAIRS REFERENCE(S):          BCC2016/4340617

MEMBER:Amanda Ducrou

DATE:1 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 1 December 2020 at 7:13pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Artistic Director – no approved nomination – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; rr 1.13, 5.19

CASES

Hasran v MIAC [2010] FCAFC 40
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 Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18           

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 4 October 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 22 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 (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 Artistic Director (ANZSCO 212111).

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 nomination lodged by the sponsor, The Crossover Agency Pty Ltd was refused by the Department on 29 August 2017 and, as such, there is no approved nomination.

6. The Tribunal received an application for review from the applicants on 25 October 2017. The application was accompanied by documents including a copy of the delegate’s decision. The application states that the applicants had appointed Mr Antony Wallace, a registered migration agent as their representative and authorised recipient.

7. On 3 June 2020 the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on or respond to information which it considers would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decisions under review. The letter was sent by email to the applicants via their representative at the email address provided in connection with the review.

8. The letter provided particulars of the information, namely that the nominator had sought review by the Tribunal of the decision made by the delegate to refuse the nomination application made by The Crossover Agency Pty Ltd but on 29 May 2020 the Tribunal had affirmed that decision, meaning that the nominator’s application for the nominated position has not been approved as required under cl.186.223(2) of the Regulations. The Tribunal’s letter to the applicants explained that this information is relevant to their review because it is a requirement for the grant of the Subclass 186 visas that the position specified in the visa application is the subject of a current approved nomination and if the Tribunal relies on this information in making its decision, it may find that the applicant is not the subject of a current approved nomination and, therefore, could not satisfy a requirement for the grant of the visa. The letter advised that this then would be the reason, or a part of the reason, for affirming the decision that is under review. The letter advised further that if the Tribunal found that the applicant did not meet the primary visa criteria, then this would be the reason, or a part of the reason, for affirming the decision under review not to grant the second and third named applicants subclass 186 visas, as the Tribunal would have to find that they did not meet the requirements in cl.186.311 to be members of the family unit of a person who satisfies the primary visa criteria, and there was no evidence that they met the primary visa criteria in their own right.

9. The Tribunal’s letter asked the applicants to provide their comments or response by 17 June 2020. The letter noted that the applicants could request an extension of time provided that any such request was received by 17 June 2020. The letter explained that if their comments or response to the information was not received within the period allowed, or as extended, the Tribunal may make a decision on the review without taking further action to obtain the applicants’ views on the information and that the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal is satisfied that the invitation to give comments or response was properly sent to the correct email address. The invitation was not returned as undeliverable mail.

10. The applicants did not respond to the invitation and they have not contacted the Tribunal to indicate that their comments or response is forthcoming.

11. The applicants have not provided their comments or response within the prescribed period and no extension has been granted. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) of the Act, the applicants are 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.

12. The Tribunal considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide further evidence to support the review application.

13. In doing so, the Tribunal had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to defer its decision making processes indefinitely. The Tribunal also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014), which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (28 August 2014) where analogous issues were discussed.

14. The Tribunal considered whether, in the circumstances of this case, information that the applicants meet the requirements for the grant of the visas is likely to be forthcoming and whether the applicants have had a fair opportunity to provide relevant information or documents already, and the significance of the information or documents to the applicants. The Tribunal had regard to the fact that the application made by the applicants for the visas was refused by the Department on 4 October 2017 because the delegate concluded that the applicants had not demonstrated that there was an approved nomination. The applicants submitted a copy of the primary decision record with the review application. The Tribunal observes that the applicants have been aware for approximately 37 months of the reasons for the refusal of their application for the visas.

15. In these circumstances, and for the reasons set out in this decision statment, the Tribunal considers that the applicants have 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 whether and when the applicants will provide information in writing as to whether they meet the requirements for the grant of the visas. The Tribunal is not disposed to delay making a decision indefinitely.

16. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review further to allow the applicants additional time to demonstrate that they meet the requirements for the grant of the visas.

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 whether there is an approved nomination.

    Nomination of a position

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 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.

21. In this case the applicant applied for a Subclass 186 visa on the basis of the nomination application lodged by The Crossover Agency Pty Ltd in respect of the applicant, being the nomination referred to in cl.186.223(1) of Schedule 2 to the Regulations. The nomination application was lodged with the Department on 22 December 2016. The nomination application was refused by a delegate of the Minister on 29 August 2017. As a consequence, on 4 October 2017 the applicant’s Subclass 186 visa was refused by the delegate on the basis that there was no approved nomination.

22. The decision of the delegate to refuse the nomination application lodged by The Crossover Agency Pty Ltd was affirmed by the Tribunal on 29 May 2020. This means that the matter has been finally determined and there is no approved nomination as required under cl.186.223(2) of Schedule 2 to the Regulations. As a result, the requirement in cl.186.223(2) of Schedule 2 to the Regulations is not satisfied.

23. Therefore, cl.186.223(2) of Schedule 2 to the Regulations is not met.

24. The Tribunal finds that the second and third named applicants (the applicant’s partner and child) do not meet cl.186.311, which requires them to be members of the family unit of a person who holds a Subclass 186 visa. There is no evidence before the Tribunal that establishes that they meet the primary visa criteria.

25. The applicants have 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

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

    Amanda Ducrou
    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.