Geekiyanage (Migration)

[2020] AATA 5199

Geekiyanage (Migration) [2020] AATA 5199 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Renuka Lakmali De Silva Geekiyanage
Mr Sampath Taranga Dewapriya Fonseka Fasquwal Fonsekage
Mr Rithosh Onell Fonseka

CASE NUMBER:  1824966

HOME AFFAIRS REFERENCE(S):          BCC2016/3918676

MEMBER:Antonio Dronjic

DATE:27 October 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 27 October 2020 at 10:22am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Hairdresser – subject of an approved nomination – no response to s.359A letter – Tribunal declined indefinite adjournment of decision – decision under review affirmed

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

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 7 August 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 22 November 2016. 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 Hairdresser.

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 lodged by Deindy Pty Ltd, being the nomination referred to in paragraph 186.223(1) was refused by a delegate of the Minister for Home Affairs on 21 June 2018.

6. The applicants applied to the Tribunal on 27 August 2018 and provided a copy of the primary decision record with the applications. The applicants were represented by a migration agent.

7. On 5 May 2020, the Tribunal wrote to the applicants inviting comments on or response to the information under section 359A. The s. 359A letter sought the applicants comment on or response to the following information:

   ·Your visa application was refused by the Department on 7 August 2018, because the nomination mentioned in cl.186.223 has not been approved.

   ·The decision not to approve the nomination by Deindy Pty Ltd was made by the Department on 21 June 2018.

   ·Deindy Pty Ltd applied for review of this decision at this Tribunal on 10 July 2018.

   ·On 1 May 2020, the Tribunal affirmed the Department’s decision not to approve the nomination made by Deindy 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 second and third named review applicants 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 invitation was sent to the applicants’ address provided in connection with the review and advised that, if the comments on or response to the information was not provided in writing by 19 May 2020, and no extension of time has been sought or granted, the Tribunal may make a decision on the review without taking further steps to obtain the comments on or response to the information contained in the Tribunal letter of 5 May 2020.

9. The review applicants have not provided comments on or response to the information contained in the Tribunal letter. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicants additional time in which to provide comments on or response to the information contained in the Tribunal letter of 5 May 2020.

10. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

11. The Tribunal considered whether, in the circumstances of this case, the applicants’ comments on or response to the information contained in the Tribunal’s s359A letter are likely to be forthcoming, whether the applicants had a fair opportunity to provide comments on or response to the information and the significance of the information to the applicants.

12. In this case the Tribunal wrote to the applicants under subsection 359A of the Act inviting them to provide comments and/or or response to the Tribunal letter of 5 May 2020. The Tribunal notes that the applicants have had the benefit of representation from a registered migration agent to assist with their review application. Yet, neither the applicants nor their representative provided comments and/or or response within the prescribed periods set for this purpose.

13. The Tribunal has had regard to the fact that the visa applications were refused by the Department on 7 August 2018, because the first named applicant was unable to meet the cl.186.223 ((2) which requires that the Minister has approved nomination. The applicants submitted a copy of the primary decision record with the review application. The applicants were aware of the reasons for the delegate’s’ decision for more than 2 years.

14. The Tribunal note that, if the applicants are not granted (Permanent) (Class EN) visas, they may be required to depart Australia. There is nothing to prevent the applicants from re-applying for a visa once the first named applicant finds the new employer willing to nominate the applicant for the position within their business.

15. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review and a fair opportunity to provide their comments on or response to information contained in the Tribunal letter. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. 

16. 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

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. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 186.223 lodged by Deindy 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.

20. 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.

21. The Tribunal must also affirm the decision not to grant the second and the third 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 they meet the primary visa criteria for this subclass, or any other subclass within Class EN, in their own right.

    DECISION

22. 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.