Ekanayake (Migration)

[2020] AATA 843

Ekanayake (Migration) [2020] AATA 843 (16 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Saliya Ananda Bandara Ekanayake
Mrs Lakmini Priyangika Ekanayake
Mr E W M Sachintha Ranuka Bandara Ekanayake
Mr E W M Malintha Vihanga Dandara Ekanayake

CASE NUMBER:  1801607

HOME AFFAIRS REFERENCE(S):          BCC2017/2256562

MEMBER:Antonio Dronjic

DATE:16 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 March 2020 at 4:27pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Chief Information Officer – subject of an approved nomination ­­– nomination refused – s 359A invitation to comment or respond – request for extension of time – request declined – hearing by telephone conferencing – claimed self-quarantine – applicant’s movement records – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233
Singh v MIBP [2017] FCAFC 105

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 16 January 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 26 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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of a Chief Information Officer (ANZSCO 135111).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 because the nomination application lodged by the applicant’s employer, IT Consumable Solutions Pty Ltd was refused by the Department on 23 November 2017. The delegate also refused to grant subclass 186 visas to the secondary applicants on the grounds that they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

6. The applicants applied to this Tribunal for review of the primary decision on 22 January 2018 and were represented in relation to the review by their registered migration agent. They submitted a copy of the primary decision record with their review application.

7. On 10 February 2020, the Tribunal wrote to the applicants inviting comments on or response to the following information under section 359A:

   Your visa application was refused by the Department on 16 January 2018, because the nomination mentioned in cl.186.223 has not been approved.

   The decision not to approve the nomination by IT Consumable Solutions Pty Ltd was made by the Department on 23 November 2017.

   IT Consumable Solutions Pty Ltd applied for review of this decision at this Tribunal on 5 December 2017.

   On 7 February 2020, the Tribunal affirmed the Department’s decision not to approve the nomination made by IT Consumable Solutions Pty Ltd.

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 186 visa. This is because one of the criteria contained within subclass 186, namely clause 186.223 requires that the nomination was approved by the Minister and that nomination has not subsequently been withdrawn.

   This information is relevant to the secondary review applicant because cl.186.311 which prescribes that the secondary applicants meet the requirement of this subclause if the applicants are members of the family unit (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa and they made a combined application with the primary applicant.

   Accordingly, if the first named review applicant is not a holder of a subclass 186 visa, the secondary applicants will not be able to meet cl.186.311.

8. The applicants were invited to provide their comments on or response to the information by 24 February 2020. On 17 February 2020, the applicants’ representative responded to the Tribunal letter of 10 February 2020 by requesting an extension of time to provide their comments on or response to s.359A letter. This request was based on inability of the applicant’s barrister, Mr Gross who was appointed on 31 January 2020, to continue to represent the applicants.

9. With his response, the applicants’ newly appointed representative enclosed an appointment of agent form indicating that he has been retained by the applicants on 12 February 2020. In his letter, the representative also indicated that Fairfields lawyers previously acted on behalf the applicants in this matter. On the same day, the Tribunal wrote to the applicants’ representative advising that the presiding member considered the applicant’s request for extension of time and decided not to grant it.

10. On 24 February 2020, the applicants’ representative wrote to the Tribunal asking it to re-open the nomination review application. In the separate letter, the applicants’ representative requested that the Tribunal defers making its decision related to visa application reviews until reconsideration of related nomination review. Relying on the authority in MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233, the Tribunal accepts that there is no minimum requirement for a ‘response’ to a s.359A invitation and that any reply directed to the information itself will constitute a response.

11. On 25 February 2020, the Tribunal wrote to the applicants advising that it had considered all the material before it relating to the applications but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing scheduled for 16 March 2020 at 11.30 am.

12. On 12 March 2020, the applicants’ representative wrote to the Tribunal seeking the hearing adjournment based on his planned overseas travel. On the same day, the Tribunal wrote the following letter to the applicants’ representative:

    On 12 March 2020 we received a request that the hearing be postponed. The Member has considered the request carefully but has decided not to postpone the hearing.

    The Tribunal notes that a review applicant is entitled to have a person present to assist him or her while appearing before the Tribunal. However, except where the Tribunal is satisfied exceptional circumstances exist, such a person is not entitled to present arguments or address the Tribunal during a Tribunal proceeding (section 366A).

    The hearing will proceed as scheduled.

13. On 12 March 2020, at 11.19 am, the applicants’ representative wrote:

    I wish to pass the instructions of the applicant received today.

    This is to confirm that the applicant will NOT be attending the hearing today. Although, the travel plans of the applicants’ lawyer being cancelled, the applicant has just arrived on the weekend from overseas the nominators’ client in overseas. The applicant wishes to follow self-isolation procedure advised by the Australian Government and do not wish to attend the hearing today.

    A further adjourned in light of the current circumstances will be appreciated.

14. At 12.03 the Tribunal officer contacted the applicants’ representative, Mr Katugampala of Fairfields Lawyers to inform him of the presiding member’s decision to proceed with a telephone hearing and that he should make himself available in the next five to ten minutes. Mr Katugampala indicated that he will call and seek instructions from his clients.

15. Immediately after, the Tribunal officer contacted the first named applicant informing him that the presiding member is willing to conduct the telephone hearing. The applicant indicated that he would make himself available and confirmed his telephone contact number.

16. On 12 March 2020, at 12.09 pm, the applicants’ representative wrote

    The applicant has instructed me that he Does NOT wish to attend a hearing over the phone as his matter is complicated and a Permanent Residence Visa subclass 186 application lodged in June 2017 and review pending.

    As the Nomination was decided by the Tribunal on 7th February 2020 and notified the Nominator on 24th February 2020, the Nominator has applied for judicial review.

    In the light of the above the applicant does not wish to attend a hearing on the telephone today.

17. The Tribunal checked the first named applicant’s movement records and is satisfied that the applicant departed Australia on 4 March 2020, some 9 days after receiving the hearing invitation letter, and arrived back to Australia on 14 March 2020. There is no evidence before the Tribunal that Mr Ekanayake self-quarantined himself upon arrival to Australia. It appears that the applicant attempted to use the current situation with corona virus outbreak as an excuse for not attending the hearing.

18. The Tribunal offered the applicants to attend the hearing by telephone conferencing. Mr Ekanayake initially indicated his readiness to attend the hearing. This changed after receiving advice from his migration agent. The Tribunal does not accept the applicants’ representative submissions that the applicants refused to attend the telephone hearing because of the complexity of the current review application. In fact, there is a simple question before the Tribunal - whether the Minister has approved the nomination or not. If there is no approved nomination, the applicants cannot be successful with their review application.

19. In addition, it is a requirement for both the Temporary Residence Transition and Direct Entry streams (cl.186.223 and cl.186.233 respectively) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2]

    [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016).

    [2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186)  - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

20. This was the view taken in Singh v MIBP [2017] FCAFC 105[3] (which concerned an almost identically worded criterion for a Subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.

    [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

21. The Tribunal further note that the applicants’ representative asked the Tribunal to re-open the nomination review application and/or to defer making its decision related to visa application reviews until reconsideration of related nomination review. This is not something that the Tribunal could do in considering the visa review application and the representative should know that.

22. The applicants did not appear before the Tribunal on the day and at the time and place at which the hearing was scheduled.  The Tribunal notes that the invitation to appear before the Tribunal was sent to the applicants’ address for service provided in connection with the application for review.

23. As the applicants have failed to appear before the Tribunal, the Tribunal has proceeded under section 362B(1) of the Act to make a decision on the review without taking any further action to allow or enable the applicants to appear before it.

24. The Tribunal notes that under subsection 362B(1) it has a discretion, which is confirmed by subsection 362B(2), to re-schedule the review applicants appearance before it, or to delay its decision on the review in order to enable the review applicants appearance before it to be re-scheduled. The Tribunal has considered whether it would be appropriate for it to exercise this discretion in the review applicants’ favour but, given the findings set out below, the Tribunal determined that in the circumstances of this particular case there would be no value in doing so. 

25. The Tribunal note that, according to the primary decision record submitted by the applicants with their review applications, the delegate refused to grant the visas on 16 January 2018 because related ENS nomination application referred to in the visa application had been refused. As a result, the delegate found that the first named applicant did not meet cl.186.223. Accordingly, the applicants have been aware of the reasons for the visas refusal for more than two years.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

27. 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.

28. 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.

29. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 186.223 lodged by IT Consumable Solutions Pty Ltd on behalf of the first named applicant, has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that the first named applicant does not meet the requirements of clause 186.223 at the time of its decision.

30. 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.

31. The Tribunal must also affirm the decision not to grant the second, third and fourth named applicants a subclass 186 visa as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that the second, the third and the fourth named applicants meet the primary visa criteria for this subclass, or any other subclass within Class EN, in their own right.

    DECISION

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

    Antonio Dronjic
    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.