HOANG (Migration)

[2018] AATA 2192

HOANG (Migration) [2018] AATA 2192 (8 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nam Hoang
Mrs Khanh Chi Nguyen

CASE NUMBER:  1705049

DIBP REFERENCE(S):  BCC2016/2291698

MEMBER:Katie Malyon

DATE:8 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 May 2018 at 11:34 am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Requirement to be subject of an approved nomination – Bogus documents provided - Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cls 186.213, 186.223, Schedule 4, PIC 4020

CASES
Hasran v MIAC [2010] FCAFC 40
Singh v MIBP [2017] FCAFC 105

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 2 March 2017 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 7 July 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 3 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 - Mr Nam Hoang - is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager.  This stream is designed for Subclass 457 visa holders who have worked for their employer for the past 2 years and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas as the primary visa applicant, Mr Hoang, did not meet cl.186.213 of Schedule 2 to the Regulations. The delegate found Mr Hoang did not satisfy Public Interest Criterion (PIC) 4020 because he lodged a document in support of the application that was bogus and, further, he did not seek a waiver of PIC 4020 after the delegate informed Mr Hoang of its findings in relation to his lodgement of a bogus document.  However, Mr Hoang has sought review of the delegate’s decision to refuse the Subclass 186 visa application lodged by him and his partner, the second named applicant.

   Background

6. Mr Hoang was nominated to fill the position of Customer Service Manager by his employer Sunshine Stainless Steel Pty Ltd (the Company). The Company’s nomination was refused by the delegate due to its failure to meet criteria in r.5.19(3) of the Regulations. The Company sought review of the delegate’s refusal of its nomination application in related matter number 1701951. The Tribunal made a decision on 7 March 2018 to affirm the Department’s decision not to approve the Company’s nomination in respect of the position of Customer Service Manager for Mr Hoang.

7. On 23 April 2018, the Tribunal wrote to Mr Hoang pursuant to s. 359A of the Act inviting him to comment on, or respond to, information which would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse his Subclass 186 visa application. The Tribunal informed Mr Hoang that it had affirmed the Department’s decision to refuse the nomination application made by the Company in respect of him. As a result, the position to which his Subclass 186 visa application relates could not meet criteria in cl.186.223 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

8. The Tribunal’s letter to Mr Hoang was sent to the representative who lodged his review application with the Tribunal.  Mr Hoang was requested to provide any comments or response to the information in the Tribunal’s letter on or before 7 May 2018.

9. Mr Hoang’s representative responded to the Tribunal on 1 May 2018. She informed the Tribunal that she has no instructions from her client in relation to the matters raised in the Tribunal’s s.359A letter of 23 April 2018. She explained that she has called Mr Hoang and emailed him a few times, but he has not responded. In the circumstances, Mr Hoang has not commented on, or responded to, the Tribunal’s letter within the prescribed period.

10. As Mr Hoang has not provided any response to the Tribunal’s s.359A letter, s.359C of the Act applies and, pursuant to s.360(3) of the Act, Mr Hoang 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

11. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

12. Clause 186.223 of the Regulations requires that, for applicants in the Temporary Residence Transition stream, the position to which their application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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. It is also a requirement that the Minister has approved the nomination.

13. The Company’s nomination application was refused by the Department and that decision was affirmed by the Tribunal. Mr Hoang has failed to provide any response to, or comment on, this information. As the nomination application for the position to which Mr Hoang’s Subclass 186 visa application relates has not been approved it follows that he does not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations.

14. Therefore, cl.186.223 of Schedule 2 to the Regulations is not met. In the circumstances, it has not been necessary for the Tribunal to consider the basis of the delegate’s decision to refuse Mr Hoang’s Subclass 186 visa application.

15. Mr Hoang 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

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

    Katie Malyon

    
    Member