Dinh (Migration)

[2019] AATA 6195

Dinh (Migration) [2019] AATA 6195 (23 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gia Thanh Tri Dinh
Mrs Hong Ngoc Anh LE
Master Theodore Khai Tam Dinh

CASE NUMBER:  1828497

HOME AFFAIRS REFERENCE(S):          BCC2017/3642080

MEMBER:Karen McNamara

DATE:23 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 23 October 2019 at 1:24pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Sales and Marketing Manager – no approved nomination – nomination review withdrawn by sponsor – applicant separation from family – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 26 September 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 5 October 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 first named applicant Mr Gia Thanh Tri Dinh (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Sales and Marketing Manager (ANZSCO 131112).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination of a position in relation to the applicant had not been approved.

6. The applicants lodged a review application with the Tribunal on 28 September 2018 and provided the Tribunal with a copy of the delegate’s decision to refuse the visas.

7. The Tribunal wrote to the applicants on 3 September 2019, advising that information before the Tribunal suggested that the nominator (TNR Communications Pty Ltd) withdrew their nomination review application on 13 June 2019.

8. The applicants were told that this information is relevant because it suggest that under cl.186.223(2) the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister. The applicants were invited to give comments and/or respond to this information by 17 September 2019.

9. On 17 September 2019, the Tribunal received via email a written submission from the applicant.

10. On 18 September 2019, the Tribunal wrote to the applicant (dispatched by email to the authorised recipient) advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on             8 October 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

11. On 23 September 2019, the Tribunal sought confirmation from the applicant as to whether he would be attending the hearing as he had indicated yes on the Response to hearing invitation form but added a comment stating “I was interstate so I could not attend the hearing”  The applicant confirmed that he would be attending by telephone. The applicant told the Tribunal that he required more time to provide evidence from his employer. In response the Tribunal advised him that he would have the opportunity to discuss this at the hearing. The applicant was further advised that if he sought additional time to provide information, to put this request in writing for the Tribunal’s consideration.

12. On 23 September 2019, the Tribunal received advice from the applicant’s former Migration Agent that he no longer acted for the applicant and provided the Tribunal a signed Form 956 confirming the cessation of their appointment.

13. On 4 October 2019, the applicant contacted the Tribunal by telephone and advised that he “wanted more time to collect some documents”. He told the Tribunal that he was seeking a postponement of the hearing scheduled on 8 October 2019. The applicant was advised to put his request in writing and to give reasons as to why he sought a postponement. The applicant was advised that until the Tribunal advises him otherwise, he must assume that the hearing would proceed on 8 October 2019.

14. On 4 October 2019 the Tribunal received a written submission from the applicant containing the information previously provided on 17 September 2019 as well as an additional paragraph in which the applicant sought additional time to get evidence ready for the hearing and “more time to study something to start up again if I have to go back to my country.” The applicant also provided emails between himself and the nominator.

15. On 8 October 2019 (the 7^th October 2019 was a public holiday) the Tribunal contacted the applicant to advise him that the Tribunal had agreed to postpone the hearing.

16. On 9 October 2019 Tribunal wrote to the applicant inviting him to give evidence and present arguments at a hearing on 15 October 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

17. On 14 October 2019 applicant called the Tribunal requesting more time to provide documents. The Tribunal advised him to put this request in writing. The applicant subsequently via email requested a postponement of the hearing to April 2020 because “ I could not find out my previous lawyer to get all my document which they was keeping.”

18. By return email the Tribunal advised the applicant that the postponement was not granted and that the hearing would proceed the following day as previously advised. The applicant was told that if he could not attend the AAT Melbourne registry, the hearing can be conducted by telephone. The applicant was advised that if he did not advise the Tribunal by 5pm that day (14 October 2019) the Tribunal will proceed to conduct the hearing via video conference at the Melbourne AAT registry.

19. At 6pm on 14 October 2019 the applicant sent an email to the Tribunal advising “I can not attend the hearing tomorrow.” The applicant did not provide a reason for non-attendance.

20. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5). The applicant was granted a postponement of his initial hearing scheduled for 8 October 2019, however the applicant’s second request for a postponement until April 2020 was not granted. The Tribunal afforded the applicant the opportunity of a telephone hearing however at 6pm on  14 October 2019 (the evening before the scheduled hearing) the applicant advised the Tribunal that he would not be attending the hearing and did not provide reason as to why he could not attend. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

21. The Tribunal has had regard to the information presently before it. The applicant did not provide evidence to support that their visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in the present case is whether the applicant meets the requirements of cl.186.223.

    Nomination of a position

24. 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.

25. 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.

26. The Tribunal wrote to the applicants on 3 September 2019, advising that information before the Tribunal suggested that the nominator TNR Communications Pty Ltd withdrew their nomination review application on 13 June 2019.

27. The applicants were told that this information is relevant because it suggest that under cl.186.223(2) the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister. The applicants were invited to give comments and/or respond to this information by 17 September 2019.

28. On 17 September 2019, the applicant provided the Tribunal via email a written submission in which he claims a lawyer arranged for him to work for the nominator at a cost of $80,000 of which $40,000 was to be paid to the lawyer and $40,000 to the nominator. The applicant paid the first instalment of $40,000 on 26 June 2013 and signed a contract of employment with the nominator on 1 July 2013, which stipulated the salary would be $60,000 per annum, however for the first year the applicant did not receive a salary. In 2014 the applicant claims he received “weekly salary is only half of the contract” and was forced to pay to the employer superannuation, payroll tax and company tax. The applicant continued with this arrangement for two more years and in 2016 paid the remaining amount to the lawyer with the promise of the lodgement of a subclass 186 visa. In October 2017, the applicant was advised by his lawyer that she had lodged the nomination and visa applications however the Department subsequently refused the applications and the lawyer sought additional fees to be paid by the applicant to apply to the Tribunal for review of the applications. The applicant states that he sought assistance from the nominator to supply evidence to the Tribunal, however the nominator knowing that the applicant had no more money, instructed his lawyer to withdraw the nomination review application with the Tribunal.

29. On 4 October 2019 the applicant provided an email from the nominator dated 8 April 2019 stating “ Hi Tri -  As there was too much obligations and responsibilities for TNR to keep the nomination. I think, I should withdraw TNR nomination for your case. Please arrange and prepare from your ends. Regard Thanh Nguyen Managing Director TNR Communications”. Information before the Tribunal indicates that the nominator withdrew their review application with the Tribunal on 13 June 2019.

30. The Tribunal acknowledges the dismay of the applicant and has sympathy for Mr Dinh’s situation; however, the Tribunal must apply the legislation as it stands.

31. There is no evidence before the Tribunal to support that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn. Therefore, the Tribunal finds that the nomination application associated with the position was not approved and as such the applicant does not meet cl.186.223(2) of Schedule 2 to the Regulations.

32. Therefore, as the first named applicant does not meet essential criteria for the grant of a subclass 186 visa, cl.186.223 is not met.

    Secondary Applicants

33. On 25 February 2019, the applicant’s former Migration Agent advised the Tribunal via email that the applicant wished to withdraw the application by Mrs Hong Ngoc Anh LE and Master Theodore Khai Tam Dinh on the basis that the applicant was seeking a separation and divorce from the second named applicant, Mrs Hong Ngoc Anh LE.

34. The Tribunal advised the representative by return email on 26 February 2019 that the request was noted and placed on file for consideration when allocated to a Tribunal Member.

35. The Tribunal was further contacted by the applicant on 26 February 2019, who advised that he wished to withdraw the secondary applicants (Mrs Hong Ngoc Anh LE and Master Theodore Khai Tam Dinh) from the application for review.

36. On 18 October 2019, the Tribunal wrote to the applicant requesting the applicant to confirm the withdrawal of his dependants’ applications for review by having them complete the withdrawal of application form which was forwarded with the Tribunal’s letter.

37. On 20 October 2019, the applicant provided to the Tribunal a completed withdrawal form. The Tribunal notes that the form was signed by the applicant and that the applicant has not provided evidence to the Tribunal of having the authority of his family members to withdraw their applications. Therefore in the absence of evidence to support that the secondary applicants wish to withdraw their applications, the Tribunal considers that the applicant’s request to withdraw the secondary applicants from his application, is not valid and therefore for the purpose of this application, has proceeded to consider their applications on the basis of being a claimed member of the applicant’s family unit. 

38. There is no evidence before the Tribunal to indicate that the second and third named applicants meet the primary requirements for grant of the visa.

39. As the first named applicant is found not to have met the prescribed criteria for a subclass 186 visa, the secondary applicants Mrs Hong Ngoc Anh LE and Master Theodore Khai Tam Dinh as a member of Mr Dinh’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named and third named applicants do not satisfy cl.186.311.

40. The applicants have 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

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

    Karen McNamara
    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.