Coveney (Migration)

[2020] AATA 3322

Coveney (Migration) [2020] AATA 3322 (29 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ben James Coveney
Ms Kiera Mary Allen

CASE NUMBER:  1800825

HOME AFFAIRS REFERENCE(S):          BCC2017/1783398, BCC20171783398

MEMBER:K. Chapman

DATE:29 June 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 29 June 2020 at 10:17am

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

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

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 December 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 first named applicant applied for the visa on 19 May 2017, including the second named applicant in the application. 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 (hereafter ‘the applicant’) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Sheetmetal Trades Worker (ANZSCO Code 322211). The visa application was made in connection with an application for nomination by The Trustee for Daley Trading Trust (‘the nominator’).

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 he was not the subject of an approved nomination as required. On 6 January 2018, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s visa refusal decision was provided with the application for review.

6. On 9 June 2020, the Tribunal invited the applicants to attend a review hearing scheduled for 25 June 2020. Additionally, on same date, the Tribunal wrote to the applicant, pursuant to s.359A of the Act, inviting him to comment on, or respond to, the following information:

   ·The application for approval of the nominated position made by The Trustee for Daley Trading Trust (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the Tribunal (see AAT matter 1728660). This means that the nominator’s application for the nominated position has not been approved.

7. The s.359A invitation explained that if a response was not received by 23 June 2020, or within an extended period if that were granted, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information. Further, the invitation outlined that the applicant would also 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 this invitation was properly despatched to the applicant’s email address.

8. The applicant advised the Tribunal that he and the second named applicant would attend the scheduled review hearing on 25 June 2020. However, the applicant did not provide comments or response to the information outlined in the s.359A invitation by 23 June 2020, nor have any comments or response been received at the time of this decision. In sum, the applicant has never given to the Tribunal any comments or response to the information outlined in the invitation issued pursuant to s.359A of the Act.

9. Where an applicant is invited to provide comments or response in accordance with s.359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information according to subsection 359C(2) of the Act. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with subsection 360(3) of the Act. Of note, the effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear before it as outlined in the Full Federal Court matter of Hasran v MIAC [2010] FCAFC 40.

10. On 24 June 2020, the Tribunal wrote to the applicant inviting him to provide in writing any further submissions and evidence that he wished, not later than the close of business 25 June 2020. The applicant did not respond to that invitation and no further information has been received at the time of this decision.

11. The Tribunal has carefully considered whether to afford additional time to the applicant to comment on or respond to the information outlined in the s.359A invitation, or to provide further material in support of his application for review. In doing so, it has paid careful regard to the guidance in the decisions of 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 held that the Tribunal is not required to indefinitely defer its decision making process.

12. The Tribunal has taken into account that the applicant has been aware since around 15 December 2017 of the reasons for the visa application being refused and also that the implications of not providing comments or response to the information outlined in the invitation from the Tribunal of 9 June 2020 were set out in the relevant correspondence. Additionally, the applicant did not respond to the Tribunal’s invitation of 24 June 2020 to provide further submissions and evidence. Further, the Tribunal notes that the applicants in the present review lack an approved nomination from the nominator. Following careful consideration, the Tribunal is satisfied that the present application for review has no prospects of success. Put simply, this application is futile.

13. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to provide comments or response to the information outlined in the s.359A invitation and to address the central issues arising in the application for review. On balance, the Tribunal considers it appropriate to make its decision on the review without taking any further action to obtain the applicant's views on the information outlined in the aforementioned invitation. Accordingly, the Tribunal has made its decision on this review application having due regard to the documentary material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant meets the requirements of cl.186.223(2).

    Nomination of a position

16. 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 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.

17. 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.

    Analysis

18. On balance, the Tribunal is satisfied that the nomination of the applicant for the position of Sheetmetal Trades Worker (ANZSCO Code 322211) has not been approved. Following careful consideration, the Tribunal finds that at the time of its decision there is no evidence of an approved nomination of a position relating to the applicant. Accordingly, the requirements of cl.186.223(2) are not satisfied. The Tribunal so finds.

19. 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.

20. It follows that the second named applicant also does not meet the criteria for the grant of the Subclass 186 visa.

    DECISION

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

    K. Chapman
    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.