Gill (Migration)

[2019] AATA 6670

Gill (Migration) [2019] AATA 6670 (7 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kathleen Christina Gill
Mr Donal Tomas Higgins
Miss Aoibha Kate Higgins

CASE NUMBER:  1815144

HOME AFFAIRS REFERENCE(S):          BCC2017/1297722

MEMBER:Ian Berry

DATE:7 November 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 07 November 2019 at 8:42am

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to s 359A invitation – not entitled to appear before the Tribunal – subject of an approved nomination – nomination withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 186.311

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 7 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 6 April 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 Massage Therapist.

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 the trustee for the Stay Sharp Trust was refused by the delegate of the Minister for the Department of Home Affairs.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets clause 186.223.

   Nomination of a position

9. 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.

10. 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.

11. On 23 March 2018, the nomination application lodged by the applicant’s employer, the Trustee for the Stay Sharp Trust was refused by a delegate of the Minister for the Department of Home Affairs. As clause 186.223 is not satisfied the delegate found the criteria for the grant of an Employer Nomination Scheme (186) visa are not satisfied.

12. On 21 October 2019 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting the applicants to provide, in writing, information namely ‘on 16 October 2019, your nominator, the Trustee for the Stay Sharp Trust, wrote to the Tribunal to withdraw their application to review the refusal of their nomination application. The Tribunal accepted the withdrawal on the same day’.

13. The Tribunal informed the applicant’s that the information is relevant to the review because it is a requirement under clause 186.223 that the applicant’s position to which the application relates is nominated an application for approval and the Minister has approved the Nomination. In this letter of invitation the Tribunal stated ‘if we rely on this information and making a decision, we may affirm the decision under review as you would not meet the requirements under cl.187.233’. The invitation was sent to the last address provided in connection with the review and advised that, if the information or comments were not provided in writing by 4 November 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information or comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

14. The review applicants have not provided the information or comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information or comments.

15. Therefore, cl.186.223 is not met.

16. The review applicants have 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.

17. As the second and third named review applicants are not the members of a family unit of a person who holds a Subclass 186, as there is no evidence to suggest that they meet the primary criteria for the grant of the visa, the Tribunal finds that the second and third named applicants do not satisfy clause 186.311. The decision under review in respect of the second and third named applicants must therefore be affirmed.

    DECISION

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

    Ian Berry
    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.