Foley (Migration)

[2020] AATA 1958

Foley (Migration) [2020] AATA 1958 (26 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Natasha Maureen Foley

CASE NUMBER:  1909700

HOME AFFAIRS REFERENCE(S):          BCC2018/1170878

MEMBER:Jennifer Cripps Watts

DATE:26 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 26 May 2020 at 3:30pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – employer’s position nomination refused – application for review of refusal withdrawn – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 1, item 1114B(3)(d), Schedule 2, cl 186.233

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 1 April 2019 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 March 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Hairdresser.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.212 of Schedule 2 to the Regulations because they were not satisfied that the position to which the application related would provide the applicant the employment referred to in the application for approval.

6. On 7 May 2020, the Tribunal invited the applicant to attend a scheduled hearing and sent the applicant a letter particularising adverse information relating to the nomination and explaining why this would be a reason or part of the reason for affirming the decision to refuse the visa; relevantly, the applicant was informed that it appeared that the application was not the subject of an approved nomination for the position specified in the visa application.  It was requested in the letter that the applicant respond to the information in writing no later than 21 May 2020, or within any extended timeframe granted. The applicant did not request additional time to respond and did not provide a response by the specified date. In the letter the applicant was also informed that if no response was received, that she would lose the right to appear before the Tribunal to give oral evidence and that the scheduled hearing would be cancelled.

7. The Tribunal wrote to the applicant on 22 May 2020 informing her, on the basis she had not responded to the earlier letter within the specified timeframe, that the hearing scheduled on 28 May 2020 had been cancelled and that the Tribunal would proceed to make a decision on the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The reason the visa was refused was because the applicant did not satisfy cl.186.212 of Schedule 2 to the Regulations, because the delegate was not satisfied that the position to which the application related would provide the applicant with the employment referred to in the application for approval.

10. A different issue arose on the review; it appeared the applicant may not meet cl.186.233 because there is no approved nomination for the position by Le Fringe Hair Salon Pty Ltd.  It was this issue, on the review, that was raised with the applicant in the s.359A letter that was sent on 7 May 2020.

    Nomination of a position

11. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

12. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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.

13. Departmental records indicate that the nomination relating to visa application and the position of Hairdresser was refused on 1 March 2019.  An application for review was lodged by Le Fringe Hair Salon Pty Ltd.  On 21 February 2020, the Tribunal accepted the withdrawal of their review application.

14. The applicant was informed of this adverse information, which was particularised by the Tribunal in the letter sent under s.359A of the Act, on 7 May 2020. It was explained why not having the related approved nomination for the position specified in the visa application would be a reason or a part of the reason for affirming the decision to refuse the applicant’s Subclass 186 visa that is the subject of this review.  Among other things, this is because the position to which the visa application relates must be the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made.

15. The Tribunal is satisfied that there is no approved nomination for the position specified in the applicant’s Subclass 186 visa application.

16. Therefore, cl.186.233 is not met.

17. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Jennifer Cripps Watts
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.