Chandran (Migration)

[2020] AATA 2770

Chandran (Migration) [2020] AATA 2770 (4 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suriya R Chandran

CASE NUMBER:  1928957

HOME AFFAIRS REFERENCE(S):          BCC2018/5374364

MEMBER:Phoebe Dunn

DATE:4 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 04 May 2020 at 6:17pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 – Direct Entry Stream – hairdresser – not the subject of approved nomination – no response to tribunal communication – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 359A, 359C(1), 363(1)(b), 363A
Migration Regulations 1994, rr 1.13A, 1.13B, cl 187.233(3)

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 November 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Hairdresser’ (ANZSCO 391111).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because on 19 August 2019 a delegate of the Minister refused the related nomination application by Vaky Pty Ltd, being the nomination referred to in cl.187.233(1) and as such there was no approved nomination.

6. By letter dated 7 April 2020, the Tribunal wrote to the applicant under s.359A of the Act, inviting the applicant to comment on or respond to certain information that the Tribunal considered would, subject to any comments or response, be the reason, or part of the reason, for affirming the decision under review.  In that letter, the Tribunal provided particulars of the adverse information and explained the consequences of the Tribunal relying on that information as follows:

   a.On 30 November 2018, Vaky Pty Ltd (the nominator) lodged a nomination application under the Direct Entry stream, nominating the applicant in the nominated position of Hairdresser (ANZSCO 391111) (the nomination), being the nomination in respect of which the applicant’s Subclass 187 visa application declaration was made;

   b.On 19 August 2019, a delegate of the Minister for Immigration refused the nomination, and that decision is not the subject of a pending review application before this Tribunal; and

   c.This means that the nomination has not been approved as required under cl.187.233(3) of the Migration Regulations.

7. The Tribunal explained in the letter that the information was relevant to the review because it is a requirement for the grant of the applicant’s Subclass 187 visa that the nomination identified in the applicant’s Subclass 187 visa application nominating the applicant to work in the nominated position has been approved.  The Tribunal further explained that if the Tribunal relies on this information in making its decision, the Tribunal may find that the applicant is not the subject of a current approved nomination and that this would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review.

8. The applicant was invited to comment on or respond to the information or seek an extension of time to comment on or respond to the information, by 21 April 2020. The Tribunal explained that if the applicant did not comment on or respond to the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information and that the applicant would lose his entitlement to appear before the Tribunal to give evidence and present arguments.

9. The Tribunal did not receive a response to its letter.

10. The Courts have confirmed that where an applicant fails to provide the requested comments or information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.[1]  Accordingly, as the applicant failed to comment on or respond to the information within the prescribed period, he has lost any right to appear before the Tribunal to give evidence and present arguments relating to the review application.

    [1] Singh v Minister for Immigration and Border Protection [2014] FCCA 1403, 32-39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40

11. By letter dated 24 April 2020, the Tribunal again wrote to the applicant noting that as the Tribunal did not receive a response to its letter, or a request for an extension of time within which to respond by the due date, the applicant had lost his right to appear before the Tribunal to give evidence and present arguments.  The Tribunal further advised that it would not be making a decision on the case before 1 May 2020 and advised that the applicant may  provide any information or documents that the applicant thinks would support the applicant’s case, including commenting on or responding to the information the applicant was invited to comment on or respond to in the Tribunal’s letter dated 7 April 2020, by 1 May 2020.

12. As at the date of this decision, the Tribunal has received no response from the applicant to either of its letters.

13. The Tribunal has given consideration as to whether it should exercise its discretion under s.359C(1) of the Act to take any further steps to obtain a comment or response from the applicant. The Tribunal has also given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to comment or respond. 

14. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] 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[4] regarding the application of the principles of reasonableness when exercising its discretion, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[6] where analogous issues were discussed.

    [2] [2002] FCA 617

    [3] [2012] FMCA 28

    [4] [2013] HCA 18 (8 May 2013)

    [5] [2014] FCAFC 1 (4 February 2014)

    [6] [2014] FCA 915 (28 August 2014)

15. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in cl.187.233(3) of Schedule 2 to the Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information already, and the significance of the information to the applicant.

16. In these circumstances, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information to demonstrate that he is the subject of an approved nomination, and that this information has not been forthcoming.  In these circumstances, the Tribunal has decided to make a decision on the review without taking further action to obtain the applicant’s views on the information in accordance with s.359C(2) of the Act, or to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. 

17. The applicant was represented in relation to the review by his registered migration agent, Ms Latifa Al-Haoulil.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

20. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

21. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination;

    ·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 of the Regulations); 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.

22. On 19 August 2019, a delegate of the Minister refused the related nomination application, being the nomination referred to in cl.187.133(1), nominating the applicant in the nominated position. That decision is not the subject of a pending review application before this Tribunal and as such has been finally determined. This means that the nomination has not been approved as required under cl.187.233(3) of the Regulations. Accordingly, cl.187.233(3) is not met.

23. Therefore, cl.187.233 is not met.

24. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Phoebe Dunn
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.