Hirayama (Migration)

[2019] AATA 2826

Hirayama (Migration) [2019] AATA 2826 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yoichi Hirayama

CASE NUMBER:  1726076

HOME AFFAIRS REFERENCE(S):       BCC2017/1435451

MEMBER:Ian Berry

DATE:26 February 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 26 February 2019 at 3:08pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook ANZSCO 351411 – nomination not approved – tribunal decision to affirm nomination review – confusion with migration agents – information not received within timeframe – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994, Schedule 2, cl 186.223, rr 1.13A, 1.13B

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 Immigration and Border Protection on 4 October 2017 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 (Mr Hirayama) applied for the visa on 20 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 ( 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, Mr Hirayama is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Cook ANZSCO 351411. The delegate refused to grant the visa because Mr Hirayama did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination lodged by Naiban Australia Pty Ltd as trustee for Halu Family Trust (Nominator) the nomination), was refused by the delegate.

5. Mr Hirayama was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether Mr Hirayama’s nominator has an approved nomination, which has not been withdrawn, where he is identified  as the holder of a Subclass 457 (Temporary Work) (Skilled )) visa.

   Nomination of a position

8. 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.

9. 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.

10. The Nominator nominated Mr Hirayama for the position of Cook to work in its restaurant. The delegate’s decision for the nominated position of cook which identified Mr Hirayama for that position, was refused. The Nominator made an application for review this decision, to this Tribunal. The Tribunal affirmed the decision on 4 February 2019.

11. Mr Hirayama did not then have a nomination where he is identified as the as the person to fill the nominated position of cook.

12. On 5 February 2019, the Tribunal wrote to Mr Hirayama pursuant to s.359A of the Act, inviting him to provide, in writing, information about the Tribunal’s decision of the Tribunal, made on 4 February 2019 affirming the delegate’s decision refusing the nomination application, or comment on information which, the Tribunal considered may be part of the reason for affirming the decision under review. The relevance of the information is that cl. 186.223(1) of Schedule 2 of the Regulations, requires that the nomination be approved. As the Tribunal has affirmed the decision to refuse the nomination, it follows that Mr Hirayama does not meet cl.186.223(3).

13. The invitation was sent to the last address provided in connection with the review, and advised, if the information was, or comments were not provided in writing by19 February 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information or comments and Mr Hirayama would lose any entitlement he might otherwise have (under the Act) to appear before the Tribunal to give evidence and present arguments.

14. Mr Hirayama appointed a new migration representative (newly appointed migration agent). The newly appointed migration agent wrote to the Tribunal on 18 February 2019, requesting time in which to present further information. He suggested a period of 7 to 10 days within which to present this information. The form (in respect of the newly appointed migration agent’s appointment) was sent to the Tribunal but it was the wrong form and the newly appointed migration agent was so informed.

15. The newly appointed migration agent telephoned the Tribunal and sought advice about the requested extension. He was advised that the correct form for the appointment of the migration agent must be sent to the Tribunal before and extension can be considered. 

16. On 19 February 2019, Mr Hirayama’s original migration agent emailed the Tribunal requesting the Tribunal reconsider its decision, that is, the decision affirming the Minister’s decision to refuse the nomination. This email ended with the following “I will contact you again once I have received a further information acting for the nomination application”

17. The Tribunal, by email made on 19 February 2019 informed the original migration agent of the conflicting emails between himself and the newly appointed migration agent. The Tribunal (in this email) requested information about the other representative asking for an extension. It was emphasised to that original migration agent of there being strict timeframes to respond to invitations to comment.  Should the Tribunal not receive Mr Hirayama’s submission, from an authorised migration agent before the timeframe has elapsed, the presiding Member will proceed on the information before the Tribunal.

18. On 20 February 2019, the Tribunal received an email from the original migration agent for Mr Hirayama. His email stated “I wish to confirm that I act for Mr Yoichi Hirayama - 1726076 refers. Mr (name withheld by the Tribunal) acts for Naiban Australia Pty Ltd atf Halu Family Trust - 1720735 and 1719893”. It was the newly appointed migration agent who applied for the extension, but still is not named as the migration agent representing Mr Hirayama.

19. Therefore, cl.186.223 is not met.

20. Mr Hirayama 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

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

    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.