Gurung (Migration)

[2020] AATA 3938

Gurung (Migration) [2020] AATA 3938 (30 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jyoti Gurung

CASE NUMBER:  1917756

HOME AFFAIRS REFERENCE(S):          BCC2017/3416260

MEMBER:Phoebe Dunn

DATE:30 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 30 July 2020 at 11:14am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Cook – applicant failed to provide requested information – no approved nomination – tribunal affirmed nomination application – not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 363A
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 September 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the related nomination application by Sabeen Pty Ltd (the nominator), being the nomination referred to in cl.187.233(1) was refused by a delegate of the Minister on 3 May 2019 and as such there was no approved nomination.

6. On 20 May 2019, the nominator applied for review of the delegate’s decision and on 19 June 2020 the Tribunal affirmed the decision to refuse the nomination.

7. By letter dated 23 June 2020, the Tribunal wrote to the applicant under s.359A of the Act inviting the applicant to comment on or respond to information that the Tribunal considered would, subject to any comments or response, be the reason or part of the reason for affirming the decision under review being that the Tribunal had affirmed the decision to refuse the related nomination application on review and as such there was no approved nomination.  In its letter, the Tribunal outlined the particulars of the information, the relevance of the information and the consequences of the Tribunal relying on the information, as follows:

   a. On 19 June 2020, the Tribunal affirmed the decision to refuse the nomination application made by the nominator in relation to the applicant and this means that the nomination has not been approved as required by cl.187.233(3) of Schedule 2 to the Regulations.

8. In its letter, the Tribunal stated that this information is relevant to the review because it is a requirement for the grant of the applicant’s Subclass 187 visa that the related nomination application has been approved.  The Tribunal stated further that if the Tribunal relies on this information in making its decision it may find that the applicant is not the subject of a current approved nomination and this would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review.

9. The applicant was invited to comment on or respond to the adverse information, or to request an extension of time in which to do so, by 7 July 2020. In its letter the Tribunal noted that if the comments or response was not received by the stipulated date or as extended, the applicant would lose any entitlement she may otherwise have had to appear before the Tribunal to give evidence and present arguments and the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the adverse information.

10. The applicant did not respond to the Tribunal’s letter by the stipulated date and no request for an extension of time to do so was received.

11. The Courts have confirmed that where an applicant fails to provide the requested comments or information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.[1]  Accordingly, as the applicant failed to comment on or respond to the information within the prescribed period, she has lost any right to appear before the Tribunal to give evidence and present arguments relating to the review application.

    [1] Singh v Minister for Immigration and Border Protection [2014] FCCA 1403, 32-39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40

12. By letter dated 14 July 2020, the Tribunal wrote to the applicant again noting that as the Tribunal did not receive a response to its letter by the due date, or a request for an extension of time within which to respond, the applicant had lost her right to appear before the Tribunal to give evidence and present arguments.  The Tribunal further advised that it would not be making a decision on the case before 28 July 2020 and advised that the applicant could provide any information or documents that the applicant thinks would support her case, including commenting on or responding to the information she was invited to comment on or respond to in the Tribunal’s letter dated 23 June 2020, by 28 July 2020.

13. As at the date of this decision, the Tribunal has received no response from the applicant to either of its letters.

14. The Tribunal has considered whether it should exercise its discretion under s.359C(2) of the Act to take any further steps to obtain a comment or response from the applicant. The Tribunal has also given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to comment or respond. 

15. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] 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[4] regarding the application of the principles of reasonableness when exercising its discretion, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[6] where analogous issues were discussed.

    [2] [2002] FCA 617

    [3] [2012] FMCA 28

    [4] [2013] HCA 18 (8 May 2013)

    [5] [2014] FCAFC 1 (4 February 2014)

    [6] [2014] FCA 915 (28 August 2014)

16. The Tribunal considered whether, in the circumstances of this case, the applicant has had a fair opportunity to comment on or respond to the adverse information already, and the significance of the adverse information to the applicant.

17. The Tribunal considers that the applicant has had a fair opportunity to comment on or respond to the adverse information or request an extension of time within which to do so, and no response has been received.  In these circumstances, the Tribunal has decided to make a decision on the review without taking further action to obtain the applicant’s comments on or response to the adverse information in accordance with s.359C(2) of the Act, or to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. 

18. The applicant was represented in relation to the review by her registered migration agent, Mr Haralambos Harry Gatsoulis.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

21. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. 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.

22. 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 of the Regulations), 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.

23. In this case the related nomination application by the nominator, Sabeen Pty Ltd, being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister on 3 May 2019 and this decision was recently affirmed by the Tribunal.  As such, the related nomination application has not been approved and the applicant is not the subject of an approved nomination as required under cl.187.233(3) of the Regulations.  The Tribunal has carefully considered the information before it and finds that cl.187.233(3) is not met.

24. Therefore, cl.187.233 is not met.

25. The applicant has only sought to satisfy the criteria for a Subclass 187 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

26. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Phoebe Dunn
    Member

    
    

    ATTACHMENT A

    187.233(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)(ii); or

    (ii)subregulation 5.19(4) 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 1114C (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 no more than 6 months after the Minister approved the nomination.