Chen (Migration)

[2020] AATA 854

Chen (Migration) [2020] AATA 854 (12 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Guodong Chen
Mrs Yala Deng
Miss Xinyi Chen

CASE NUMBER:  1906075

HOME AFFAIRS REFERENCE(S):          BCC2018/2743781

MEMBER:Phoebe Dunn

DATE:12 March 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 12 March 2020 at 4:47pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Civil Engineering Technician – subject of an approved nomination ­­– employer nomination review application withdrawn – no response to invitation to provide further information – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 363, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
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 Home Affairs on 12 March 2019 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 23 July 2018. 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 Civil Engineering Technician (ANZSCO 312212).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the related nomination application by Metwest Steel Pty Ltd, being the nomination referred to in cl.186.223(1), was refused by a delegate of the Department on 9 January 2019, and as such there was no approved nomination.

6. The nominator sought a review of the decision to refuse the nomination application on 23 January 2019, but on 3 February 2020, the nominator withdrew the application for review.

7. By letter dated 6 February 2020, the Tribunal wrote to the applicants in accordance with s.359A of the Act, inviting the applicants to comment on adverse information that the Tribunal considered would, subject to any comment or response from the applicants, be the reason or part of the reason for affirming the decisions under review. The letter included the following particulars of the adverse information:

   ·On 3 February 2020, the nominator withdrew their application for review of the decision to refuse the application.

   ·This means that the nomination has not been approved as required under cl.186.223(2) of the Migration Regulations.

8. In the s.359A letter, the Tribunal explained that this information was relevant to the review because it is a requirement for the grant of a Subclass 186 visa that the applicant is the subject of a current approved nomination.  The Tribunal further explained that if the Tribunal was to rely on the 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 decisions under review. 

9. The applicants were invited to comment on or respond to the information in writing, or to seek an extension of time within which to comment on or respond to the information, by 20 February 2020. The applicants were advised that should the Tribunal not receive any comments or response, or a request for an extension of time within which to comment or respond, the Tribunal may make a decision on the review without taking any further action to obtain the applicants’ views on the information, and that the applicants would lose any entitlement the applicants may otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. As at the date of this decision, the Tribunal has not received comments or a response to its letter or a request for an extension of time within which to comment or respond.

11. 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 applicants failed to comment on or respond to the information within the prescribed period, they have lost the 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

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

13. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in cl.186.223(2) of the Regulations is likely to be forthcoming and whether the applicants have had a fair opportunity to provide the relevant information already, and the significance of the information to the applicants.

14. In these circumstances, the Tribunal considers that the applicants have had a fair opportunity to provide the relevant information to demonstrate that the applicant meets the requirements in cl.186.223(2) of the Regulations, 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 applicants’ 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 to do so. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

17. 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.

18. 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 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.

19. On 9 January 2019, the nomination was refused by a delegate of the Minister.  The nominator sought a review of that decision on 23 January 2019, but subsequently withdrew the review application on 3 February 2020.  As such, the related nomination has not been approved and the first named applicant is not the subject of an approved nomination as required under cl.186.223(2).  Accordingly, cl.186.223(2) is not met.

20. Therefore, cl.186.223 is not met.

21. 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.

22. The only basis of the application of the second and third named applicants is that they are members of the family unit of the person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.186.311(a).  As the first named applicant does not meet the primary criteria and has not been granted a Subclass 186 visa, the decision to refuse the applications of the second and third named applicants must also be affirmed because they do not satisfy cl.186.311.

    DECISION

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

    Phoebe Dunn
    Member

    
    

    ATTACHMENT A

    186.223(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 Temporary Residence Transition stream; 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.