Fang (Migration)

[2020] AATA 4471

Fang (Migration) [2020] AATA 4471 (21 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yong Fang

CASE NUMBER:  1831911

HOME AFFAIRS REFERENCE(S):          BCC2018/191108

MEMBER:Warren Stooke AM

DATE:21 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 21 October 2020 at 1:24pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Metal Fabricator – subject of an approved nomination – no response to s 359(2) invitation – not entitled to appear before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
Hasran v MIAC [2010] FCAFC 40

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 12 October 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 January 2018. 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 Metal Fabricator – ANZSCO Code: 322311.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because on 12 October 2018, the nomination lodged by THE TRUSTEE FOR G P PHILLIPS FAMILY TRUST, being the nomination referred to in paragraph 186.223(1), was refused by a delegate of the Minister for Home Affairs.

6. On 30 September 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to comment on information that it considered would be the reason or part of the reason for affirming the decision under review. That information was that the first named applicant was not the subject of an approved nomination as required by cl.186.223 of the Regulations. The Tribunal explained to the applicant that this information was relevant to the review because if the applicant did not meet the requirements of cl.186.223, he did not meet the requirements for the grant of the visa.

7. The invitation advised that, if the comments were not provided in writing by 14 October 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlements they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The applicant has not provided the comments within the prescribed period and no extension has been sought or granted prior to the expiration of time on 14 October 2020, that addresses the content of the invitation to comment. In these circumstances s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40.

9. As of the date of decision there has been no response from the applicant. Given that there has been no response by the required date of 14 October 2020, the applicant has lost the right to a hearing and accordingly, the Tribunal has proceeded to determine the matter without recourse to a hearing. The Tribunal has decided to proceed to decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issues in the present case is whether the applicant is the subject of an approved nomination.

    Nomination of a position

12. 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.

13. 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.

14. On 6 September 2018, the Department invited the applicant to comment upon information that included the following:

    “The nomination submitted to the department by The Trustee for G P Phillips Family Trust listing you as their Nominee has been refused. This means that your visa application cannot be approved.”

15. On 30 September 2020, the Tribunal corresponded with the applicant with the following request for information:

    “Dear Yong FANG

    Invitation to comment on information for a Employer Nomination (subclass 186) visa

    I am writing on instruction from the Member conducting your review, in relation to the applications for review made by you in respect of decisions to refuse to grant Employer Nomination (Permanent) visas.

    In conducting the review, we are required by the Migration Act 1958 to invite 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.

    Please note, however, that we have not made up our mind about the information.
    The particulars of the information are:

    ·The application for approval of the nominated position made by THE TRUSTEE

    FOR G PHILLIPS FAMILY TRUST (the nominator) was refused by a delegate of
    the Minister for Immigration. The nominator did not seek review of that decision
    with the AAT, this means that the nominator’s application for the nominated
    position has not been approved.

    This information is relevant to the review because it is a requirement for the grant of
    the visa that the position specified in your visa application is the subject of an
    approved nomination.

    If we rely on this information in making our decision, we may find that the position
    specified in your visa application is not the subject of an approved nomination. This
    would mean that you do not satisfy a requirement for the grant of the visa and that we
    must affirm the decision that is under review.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 14 October 2020. If the
    comments or response are in a language other than English, they must be
    accompanied by an English translation from an accredited translator.

    If you cannot provide your written comments or response by 14 October 2020, you
    may ask us for an extension of time in which to provide the comments or response. If
    you make such a request, it must be received by us by 14 October 2020 and you
    must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    If we do not receive your comments or response within the period allowed or as
    extended, we may make a decision on the review without taking any further action to
    obtain your views on the information. You will also lose any entitlement you might
    otherwise have had under the Migration Act 1958 to appear before us to give
    evidence and present arguments.

    If you have any questions, please email [email protected], or contact me on the
    number listed below, or telephone our national enquiry line on 1800 228 333. For
    language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”

16. As noted above, the Tribunal’s correspondence explained that if the applicant did not provide the information within the prescribed period, or a period as extended, the applicant would lose the right to present evidence and arguments at a Tribunal hearing.

17. On 13 October 2020 and 19 October 2020, the Tribunal provided the applicant with an SMS reminder regarding the impending hearing scheduled for 20 October 2020. In this regard, the Tribunal has confirmed that the applicant was provided with advice concerning the attendance at hearing and the invitation to comment in accordance with 359A, which were provided through the email address designated on the application for review by the Tribunal that was lodged on 30 October 2018.

18. The Tribunal has considered whether the applicant received correspondence from the Tribunal concerning the circumstances of his case and is satisfied that the Tribunal notified the applicant at the address provided by the applicant. In this regard, the Tribunal is satisfied that all correspondence was sent to the email address advised to the Tribunal on the Application for Review form completed by the applicant and lodged with the Tribunal on 30 October 2018.

19. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if the applicants have no entitlement to a hearing, the Tribunal has no power to permit the applicants to appear at a hearing: Hasran v MIAC [2010] FCAFC 40.

20. The Tribunal in proceeding to decision finds that there is no information before the Tribunal that suggests the applicant is the subject of a nomination approved by the Minister as required by cl.186.223(3) of Schedule 2 to the Migration Regulations.

21. Accordingly, the requirements of cl.186.223(3) are not met.

22. Therefore, cl.186.223 is not met.

23. On the basis of the evidence before the Tribunal, the decision should be affirmed.

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.

    DECISION

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

    Warren Stooke AM
    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.