ELNAS (Migration)

[2019] AATA 1951

ELNAS (Migration) [2019] AATA 1951 (19 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss ANALYN ELNAS
Miss MARY GRACE AMADOR

CASE NUMBER:  1816498

HOME AFFAIRS REFERENCE(S):           BCC2017/3369909

MEMBER:Jennifer Cripps Watts

DATE:19 February 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 19 February 2019 at 1:07pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent)(Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition scheme – nomination not approved – request for information – no response – did not attend hearing – no nomination review pending – secondary applicant cannot meet criteria – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 185.223, 186.223, 186.233, 186.311, rr 1.13A, 1.13B

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 (the delegate) on 21 May 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 15 September 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.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination relating to the applicant’s Subclass 186 visa application was refused and the applicant was not therefore the subject of an approved nomination.

6. On 6 June 2018 the applicant applied for Tribunal review, within time, and provided a copy of the delegate’s decision with their review application. 

7. On 6 December 2018, the Tribunal sent the applicant a ‘request for information’.  In the letter, this was included:

   ‘It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.

   Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.

   If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide evidence about this by 20 December 2018.’

8. No response was received from the applicant.  They did not request an extension of time to provide information in response to the letter or give any reason why a response was not provided.

9. On 18 January 2019, the Tribunal sent an invitation in writing to the applicant to attend a scheduled hearing on 19 February 2019.  She was invited to attend and also to provide any additional documents she would like considered.  In the invitation the applicant was informed that if she is not able to attend the hearing, she needs to contact the Tribunal and provide a reason.  It is also stated in the hearing invitation that the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear, or may dismiss the application without any further consideration of the application or information before it.  The Tribunal received no response to the hearing invitation.  The applicant provided no additional documentary evidence.

10. The applicant has not engaged with the Tribunal since lodging the review application about eight months ago.  She did not respond to the Tribunal’s request for information in December 2018 and she did not respond to the hearing invitation which requested that she provide additional documentary evidence she wished to be considered.  The Tribunal is satisfied that it has communicated with the applicant by way of the email address she provided at the time she made the review application.  The applicant has not informed the Tribunal of any change to her circumstances, for instance a change of email address.

11. The applicant did not request a postponement of the scheduled hearing.  The applicant did not attend the scheduled hearing at 9:30am on 19 February 2019.  No reason has been given for the non-attendance.

12. The Tribunal, having considered relevant facts and matters, is satisfied that the applicant was given ample opportunity to provide information and/or documents in support of the review, he was properly invited to the scheduled hearing and that has waived her right to give oral evidence by not attending and providing no reason for the non-attendance.  In the circumstances, the Tribunal has proceeded to make a decision on the evidence before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is, essentially, whether the position identifying the applicant is the subject of a nomination or pending nomination review.

15. The applicant has been provided with opportunities to provide evidence that they satisfy the criteria for the grant of the visa and have not provided any evidence of this kind.

16. The Tribunal has had regard to the evidence before it, including relevant matters contained in the delegate’s decision.

    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 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.

19. The nomination application relating to the visa applicant in this matter, by KS Medical Group Pty Ltd atf United Medical Family Trust, was refused on 9 April 2018.  There is no information before the Tribunal that they lodged a review application.

20. On 6 December 2018, the Tribunal sent the applicant a ‘request for information’.  In the letter, this was included:

    ‘It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.

    Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.

21. If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide evidence about this by 20 December 2018.’

22. No response was received.  No documentary evidence indicating that the applicant is the subject of a nomination or that there is a nomination review pending has been provided to the Tribunal.  The applicant did not attend her hearing to give oral evidence.  On the evidence before it, the Tribunal is satisfied that the applicant was provided with opportunities to provide documentary and oral evidence in support of her review application.  The applicant, on the evidence, is not the subject of an approved nomination and there is no nomination review pending.

23. Therefore, the applicant does not meet cl.185.223.

24. 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.

    Secondary applicants

25. A secondary applicant must be a member of the family unit of a person who satisfies the primary criteria for the grant of a Subclass 186 visa.  The Tribunal has made findings that the primary applicant does not meet cl.186.233 for the grant of the visa.  The secondary applicant made a combined application with the primary applicant.  However, there is no evidence before the Tribunal that the secondary applicant is a member of the family unit of a person who holds a Subclass 186 visa.  On this basis, the secondary applicant cannot meet criteria cl.186.311 and therefore do not meet the criteria for the grant of the visa.

    DECISION

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

    Jennifer Cripps Watts
    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.