Choudhary (Migration)

[2020] AATA 1294

Choudhary (Migration) [2020] AATA 1294 (17 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Naren Choudhary

CASE NUMBER:  1724025

HOME AFFAIRS REFERENCE(S):          BCC2017/2331211

MEMBER:Phoebe Dunn

DATE:17 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 17 April 2020 at 4:26pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination – no response to s 359A invitation – not entitled to appear before the Tribunal – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v 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 15 September 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 30 June 2017. 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 the Temporary Residence Transition stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the related nomination application lodged by the Trustee for Mohammed Hamdan Family Trust (the nominator), being the nomination identified in cl.186.223(1), was refused by a delegate of the Minister for Immigration on 9 August 2017 and as such there was no approved nomination.

6. On 30 August 2017, the nominator lodged a review of the decision to refuse the nomination.  On 12 March 2020, the Tribunal affirmed the decision of the delegate to refuse the nomination.

7. By letter dated 26 March 2020, the Tribunal wrote to the applicant in accordance with the requirements of s.359A of the Act inviting the applicant to comment on or respond to information that the Tribunal considered, subject to any comment or response, would be the reason or part of the reason for affirming the decision under review.  In its letter the Tribunal provided particulars of the adverse information, explained the relevance of it and identified the consequences of the Tribunal relying on that information as follows:

   ·The particulars of the information are that the decision to refuse the related nomination application was affirmed by the Tribunal on review on 12 March 2020 and this means that the nomination has not been approved as required under cl.186.223(2) of the Regulations;

   ·This information is relevant to the review because it is a requirement for the grant of the Subclass 186 visa that the nomination identified in the applicant’s Subclass 186 visa application nominating the applicant to work in the nominated position has been approved; and

   ·If the Tribunal relies on this information in making its decision, the Tribunal may find that the applicant is not the subject of an approved nomination and 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 under review.

8. The applicant was invited to comment on or respond to the information in writing, or to seek an extension of time within which to do so, by 9 April 2020. In its letter the Tribunal noted that if written comments or a response or a request for an extension of time was not received by the specified date of 9 April 2020, the Tribunal may make a decision on the review without taking further action to obtain the applicant’s views on the information and that the applicant would lose any right he may otherwise have had to appear before the Tribunal to give evidence and present arguments.

9. 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.

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 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 and Citizenship [2010] FCAFC 40.

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

12. 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)

13. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements of cl.186.223(2) 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.

14. The Tribunal considers that the applicant has had a fair opportunity to provide the relevant information to demonstrate that the applicant meets the requirements of cl.186.223(2) of Schedule 2 to 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 applicant’s views on the information in accordance with s.359C(2) of the Act and has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further.

15. The applicant was represented in relation to the review by his registered migration agent, Mr Fadi Malek.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

18. 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.

19. 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.

20. In this case, the related nomination application in respect of the applicant was refused by a delegate of the Minister for Immigration on 9 August 2017.  The nominator applied for a review of that decision, but on 12 March 2020, the Tribunal affirmed the delegate’s decision on review. Accordingly, at the time of this decision, the applicant is not the subject of an approved nomination as required under cl.186.223(2).

21. Therefore, cl.186.223 is not met.

22. 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

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

    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 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.