De Zoysa Wickramaratne (Migration)

De Zoysa Wickramaratne (Migration) [2019] AATA 5977 (6 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Garumuni Rachel Shauntale De Zoysa Wickramaratne
Mr Asela Rukshan Kelad Kulatunga
Ms Phoebe Mia Kulatunga
CASE NUMBER:  1806319
HOME AFFAIRS REFERENCE(S):          BCC2017/2039561
MEMBER:Phoebe Dunn
DATE:6 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Statement made on 06 January 2020 at 9:32am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – employer’s nomination application refused – combined hearing of employer’s and applicant’s reviews – no response to tribunal’s request for additional information and submissions – refusal of position nomination affirmed – no approved nomination – no substantive response to tribunal’s s 359A letter – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 359A, 359C(1), (2), 363(1)(b), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223(2), 186.311(a)

CASES

Hasran v Minister for Immigration & Citizenship [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 Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Singh v Minister for Immigration and Border Protection [2014] FCCA 1403
Yang v Minister for Immigration and Citizenship [2010] FMCA 890
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 February 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 8 June 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
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 Café or Restaurant Manager (ANZSCO 141111).
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 the Trustee for the Alan Homes Family Trust Pty Ltd was refused by a delegate of the Minister on 18 January 2018, and as such there was no approved nomination.
On 7 February 2018, the nominator applied for review of that decision, and on 8 March 2018 the applicant applied for a review of the decision in relation to the decision to refuse her Subclass 186 visa application. The applicant was invited to attend a combined hearing of the matter with the review of the decision to refuse the nomination application in Tribunal file number 1803290. Due to an administrative error, the hearing invitation letter in relation to the applicant was not sent until 26 September 2019. This error was identified on 25 September 2019 and the Tribunal contacted the applicant’s registered migration agent, Mr Kasun Gamlath, to discuss whether the applicant was able and willing to attend the hearing on 30 September, noting that this would entail a shortened notice period. Mr Gamlath indicated he would seek instructions from the applicant and respond in writing by email. By email received on 26 September 2019 at 12.32pm, the representative confirmed in writing that the nominee was happy to attend the combined hearing to consider her review application, agreeing to the shortened notice period. On 26 September 2019, the Tribunal sent the applicant the hearing invitation letter, and received the completed ‘response to hearing invitation’ form signed and dated 27 September 2019, received on 29 September 2019. The applicants were represented in relation to the review by their registered migration agent, Mr Gamlath.
The applicants appeared before the Tribunal on 30 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mutlu Alan, representing the applicant, and Mr Polwatta Kalyanada, the nominator’s accountant. The hearing was conducted as a combined hearing with the review of the decision to refuse the nomination application in Tribunal file number 1803290. The applicant’s representative attended the Tribunal hearing.
At the hearing, the Tribunal requested that both the nominator and the applicant provide the Tribunal with additional information and submissions identified by the Tribunal during the hearing, to be provided following the hearing. By letters dated 30 September 2019 sent to both the applicant and the nominator, it was confirmed that the information requested by the Tribunal during the hearing should be provided by 15 October 2019. Those letters also noted that the applicant may seek an extension of time in which to provide the information, but that any such request for an extension must be received by 15 October 2019, stating the reasons why an extension is required.
As at the date of this decision, the Tribunal has received no response, and no further documentation or information has been submitted to the Tribunal since the hearing held on 30 September 2019 in respect of either the nomination or this application.
On 8 November 2019, the Tribunal affirmed the decision of the delegate in relation to the nomination application in Tribunal file 1803290.
On 13 November 2019, the Tribunal wrote to the applicant under s.359A of the Act, inviting the applicant to comment or respond to certain information that the Tribunal considered would, subject to any comments or response from the applicant, be the reason, or part of the reason, for affirming the decision under review, or to seek additional time to comment on or respond to the information, as follows:
a.The particulars of the information were that the application for approval of the nominated position made by The Trustee for the Alan Homes Family 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 on 8 November 2019. This means that the nominator’s application for the nominated position has not been approved;
b.This information is relevant to the review because it is a requirement for the grant of the Subclass 186 visa that the position specified in the applicant’s visa application is the subject of an approved nomination; and
c.If the Tribunal relies on the information in making its decision, the Tribunal may find that the position specified on the visa application is not the subject of an 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.
The applicant was invited to comment on or respond to the information in writing, or to request an extension of time within which to provide comments or respond, by 27 November 2019. The applicant was 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 applicant’s views on the information, and that the applicant would lose any entitlement the applicant may otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
By email dated 5 December 2019, after the prescribed period, the applicant’s representative wrote to the Tribunal requesting an extension of time as follows: ‘Applicant advised that her employer logging (sic) another nomination & requested to provide another two months.’
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, she has lost any further right to appear before the Tribunal to give evidence and present arguments relating to the review application, noting that she has already appeared before the Tribunal in relation to this review.
[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.
Accordingly, the Tribunal wrote to the applicant by letter dated 10 December 2019 as follows:
On 13 November 2019 the Tribunal sent you a letter inviting 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 decisions under
review. The letter stated that a failure to provide comment or a response by 27
November 2019 would result in a loss of your right to appear before the Tribunal.
As you failed to provide comment or respond to the information within the prescribed
period you have lost your right to appear before the Tribunal and the Member will
proceed to make a decision on the papers. However, the Member will not be finalising the decision before 24 December 2019, and will take into consideration any information relevant to the review received prior to that date.
As at the date of this decision, the Tribunal has received no further comment or response from the applicant.
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 applicant. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements of cl.186.223(2) of 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.
In these circumstances, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information to demonstrate that she is the subject of an approved nomination for the position specified on her visa application, 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.
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 establish the requirements of cl.186.223(2) of the Regulations or met.
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)
The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements of cl.186.223(2) of 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.
In these circumstances, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information to demonstrate that she is the subject of an approved nomination for the position specified in her visa application, and that this information has not been forthcoming. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether there is an approved nomination.
Nomination of a position
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.
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.
On 8 November 2019, the Tribunal affirmed the delegate’s decision to refuse the nomination application by the Trustee for the Alan Homes Family Trust Pty Ltd in respect of the applicant. Accordingly, at the time of this decision, the applicant is not the subject of an approved nomination as required under cl.186.223(2) of the Regulations.
Therefore, cl.186.223 is not met.
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.
The only basis of the applications 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
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 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.

[2019] AATA 5977

6 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal