Chi (Migration)

[2020] AATA 4837

Chi (Migration) [2020] AATA 4837 (10 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yi Chi

CASE NUMBER:  2001539

HOME AFFAIRS REFERENCE(S):          BCC2016/3748031

MEMBER:Mark Bishop

DATE:10 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 10 November 2020 at 9:56am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Entrance Transition stream – Management Accountant – no approved nomination – no response to tribunal communication – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359(2), 359C(1), 360(3), 363A, 363(1)(b)
Migration Regulations 1994, Schedule 2, cl 186.223, rr 1.13A, 1.13B

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 Citizenship v Li [2013] HCA18
Minister for Immigration and Border Protection v Singh [2014] FCAFC

Yang v MIAC [2-010] FMCA 890

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 9 January 2020 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 9 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 as set out in the decision record is seeking the visa in the Temporary Entrance Transition stream, to work in the nominated position of Management Accountant.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because on 24 January 2018 the nomination lodged by Swellfun Pty Ltd being the nomination referred to in paragraph 186.223, was refused by a delegate of the Minister for Immigration and Border Protection.

6. In this case the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the review applicant to provide further information to the Tribunal.

7. The Tribunal did not receive any response to the before mentioned written invitation. That is the review applicant has not provided the Tribunal with any further information than that which was provided to the Department.

8. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under s.359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being an address provided by the review applicant in connection with this application for review.

9. As the applicant failed to respond within the prescribed period, s.359C(1) 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 them to appear see Hasran v MIAC [2010] FCAFC 40 at [26]; Yang v MIAC [2-010] FMCA 890 at [40].

10. The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.

11. The Tribunal has 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 provide further evidence to support the review application. In doing so, the Tribunal has 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 indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li [2013] HCA18 (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 (4 February 2014) which considered analogous issues, as well as the recent decision of Kaur v Minister for Immigration and Border Protection [2014 FCA 915 (28 August 2014).

12. The Tribunal wrote to the applicant on 20 October 2020 seeking information under s.359(2) of the Act. The applicant did not respond to this request for information. In view of the compressed time frame the Tribunal is of the view the applicant has had the most recent possible opportunity to provide relevant information.

13. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.

14. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.

15. Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

17. Clause 186.223 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the appropriate stream. 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.

18. 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); 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 22 October 2020 the Tribunal wrote to the applicant in the following terms:

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·You applied for the Subclass 186 (Employer Nomination Scheme) visa based on a nomination of a position made by the nominator Swellgroup Pty Ltd.  The nomination to which that position relates was refused by the Department of Home Affairs (‘the Department’) on 29 November 2019.

    ·It is a requirement for the grant of a Subclass 186 visa that the nomination has been approved and that the nomination has not subsequently been withdrawn.

    ·The Tribunal’s records indicate that the nominator did not lodge an application for review of the Department’s decision to refuse the nomination with the Tribunal.

    ·This means that the Department’s decision refusing the nomination in relation to you stands. Therefore, the relevant nomination for the position has not been approved.

    This information is relevant to the review because one of the requirements for the grant of the Subclass 186 visa is that the relevant nomination, that is the nomination you relied on when lodging your visa application, has been approved, and the information suggests that the nomination has not been approved and/or that it has been withdrawn.

    If we accept and rely on this information in making our decision, we may find that the relevant nomination has not been approved or has been withdrawn and therefore that you are not the subject of an approved nomination and do not meet the requirements of cl 186. This would be the reason or part of the reason for the Tribunal to affirm the decision under review, that is, the decision made by the Department to refuse you the grant of a Subclass 186 visa.

20. You are invited to give comments on or respond to the above information in writing. Your comments or response should be received by 6 November 2020. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

21. The applicant did not respond to this request for information.

22. On 29 November 2019 the nomination lodged by Swellgroup (Aust) Pty Ltd, being the nomination referred to in paragraph 186.223(1), was refused by a delegate of the Minister for Immigration and Border Protection.

23. There is no evidence before the Tribunal that the relevant nomination has been approved. The evidence before the Tribunal is that the prior nomination was refused and therefore that the applicant is not the subject of an approved nomination and does not meet the requirements of cl 186.223.

24. Therefore, cl.186.223 is not met.

    CONCLUDING PARAGRAPH (ALL ISSUES)

25. The applicant has only sought to satisfy the criteria for a Subclass 186 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

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

    Mark Bishop

    
    

    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.