Devlin (Migration)

[2023] AATA 1432

Devlin (Migration) [2023] AATA 1432 (17 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stephen Francis Devlin

CASE NUMBER:  2300207

HOME AFFAIRS REFERENCE(S):          BCC2021/1110407

MEMBER:Amanda Mendes Da Costa

DATE:17 May 2023

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 May 2023 at 8.00am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Carpenter – subject of an approved nomination – no response to s.359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 Home Affairs on 20 December 2022 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 May 2021. 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 (Cth) (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 Carpenter ANZSCO Code 331212.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because he was not the subject of an approved nomination for the nominated position.

6. The Tribunal notes that on 28 April 2023 it wrote to the applicant pursuant to s359A of the Act, inviting him to comment on or respond to information which the Tribunal considered would, subject to any comments made by him, be the reason or part of the reason for affirming the decision under review.

7. The Tribunal further advised the applicant that the particulars of the information were:

   ·On 19 May 2021, FORWARDCARPENTRY PTY LTD (the nominator) applied to the Department to nominate the applicant for the position of Carpenter ANZSCO Code 331212.

   ·On 18 November 2022 the application for approval of the nominated position made by the nominator was refused by the Department.  The nominator did not apply to the Tribunal for merits review of that decision.

   ·This means that the nominator’s application for the nominated position has not been approved.

8. The invitation was sent to the last address provided in connection with the review and the Tribunal advised that the information should be provided (in writing) by 12 May 2023 and that if the Tribunal did not receive the information within the period allowed or an extension was granted, the Tribunal may make a decision on the review without taking any further action to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The Tribunal notes that no request for an extension of time to provide information has been sought and the applicant has not provided the requested information by 12 May 2023, or at all.

10. The Tribunal has considered whether it should give the applicant further time in which to provide the requested information.  In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] 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 the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 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 1, which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

11. The Tribunal has further considered that the applicant has not provided the comments or response within the prescribed period set for this purpose.

12. The Tribunal has taken into account the fact that the applicant has been aware since the delegate’s decision on 20 December 2022 of the reasons for the visa application being refused.  The Tribunal has also taken into account the implications of not providing the information requested in the invitation from the Tribunal were set out in the letter of 28 April 2023.

13. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to provide information addressing the central issues arising in the application for review but has not provided the information. 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 applicant more time in which to demonstrate that he meets the relevant criteria for the grant of the visa.

14. In making its decision, the Tribunal has considered the information in both the Departmental and Tribunal files.    

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 the applicant meets the requirements in cl 186.223 of Schedule 2 to the Regulations.

    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 reg 1.13A and reg 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. Based on the evidence before it, the Tribunal finds that:

    ·     On 19 May 2021, FORWARDCARPENTRY PTY LTD (the nominator) applied to the Department to nominate the applicant for the position of Carpenter ANZSCO Code 331212.

    ·     On 18 November 2022 the application for approval of the nominated position made by the nominator was refused by the Department.  The nominator did not apply to the Tribunal for merits review of that decision.

20. This means that the nominator’s application for the nominated position has not been approved and the applicant is not the subject of an approved nomination.

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.

    Amanda Mendes Da Costa
    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.