Holtom (Migration)

Holtom (Migration) [2020] AATA 841 (17 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Stephanie Holtom
Mr Adam Thomas Walsh
CASE NUMBER:  1723122
HOME AFFAIRS REFERENCE(S):          BCC2017/2331274
MEMBER:Michael Cooke
DATE:17 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Statement made on 17 March 2020 at 12:54pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – subject of an approved nomination – nomination refused – s 359A invitation to comment or respond – request for extension of time – intention to lodge appeal at Federal Circuit Court – request declined – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 September 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 30 June 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
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.
The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.
The applicants were scheduled to appear at a hearing on 5 March 2020. The applicants did not appear before the Tribunal at the scheduled time to give evidence and present arguments.
On 28 February 2020, following the Tribunal affirmation of the refusal of the nominator’s application, the applicant was sent the following Invitation pursuant to s.359A:
INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MS STEPHANIE HOLTOM AND MR ADAM THOMAS WALSH
I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Employer Nomination (Permanent) visas. In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
· On 27 February 2020, the Tribunal affirmed the delegate’s decision to refuse the nomination relating to your visa application. The review lodged by your nominator, The Trustee For Rashays Macquarie Unit Trust, has now been finalised.
· You are not the subject of an approved nomination.
This information is relevant to the review because if you are not the subject of an approved nomination you cannot meet cl.186.223(2) of the Regulations. In such a situation the Tribunal would be required to affirm the decision to refuse you a Subclass186 visa.
You are invited to give comments on or respond to the above information in writing.
The applicant (through her representative) responded as follows:
Re: Request for Extension of Time
We act for the abovenamed Stephanie Holtom ("the Applicant") in relation to her application for review by the Administrative Appeals Tribunal ("the Tribunal") of a decision by the Department of Home Affairs (the Department') to refuse the grant of her Employer Nomination (Permanent) (subclass 186) visa on 22 September 2017.
We refer to the Invitation to Comment received 28 February 2020, which provided the following information and invited comments or a response:
On 27 February 2020, the Tribunal affirmed the delegate's decision to refuse the nomination relating to Applicant's visa application.
The Applicant is not the subject of an approved nomination.
Brief to Counsel
We take this opportunity to advise the Tribunal that we, solicitors for the Applicant, have briefed Ms Uche Okereke-Fisher of State Chambers, Level 36, 52 Martin Place, Sydney, to appeal the Tribunal's decision affirming the nomination refusal to the Federal Circuit Court.
As evidence of this, we have attached a signed cost agreement between Ms Uche Okereke-Fisher and the writer, together with relevant correspondences for your reference.
Upon our appointed counsel's advice, which we expect she will settle tomorrow,12 March 2020, we intend to lodge an appeal to the Federal Circuit Court in accordance with section 44(1), Administrative Appeals Tribunal Act 1975 (Cth).
Request
Based on the above considerations, we pray that the Tribunal either grants the Applicant a further extension of time to respond or a more preferable decision would be to suspend proceedings pending the outcome of the appeal to the Federal Circuit Court, whichever the Tribunal sees fit will enable it to carry out its statutory task that is free of jurisdictional error.
The Tribunal observes that the applicants did not appear at the scheduled hearing. They also submitted no reasons why the Tribunal’s decision was incorrect. The Tribunal, therefore, under these circumstances refused the request for an extension of time to respond.
The Response was also accompanied by a series of documents concerning the applicable legal fees to be paid by the applicant pursuant to her proposed Court appeal. The Tribunal is unable to ascertain why this information was included in the Response to the Invitation pursuant to s.359A of the Act.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the subject of an approved nomination.
Nomination of a position
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.
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.
On 27 February 2020, the Tribunal affirmed the delegate’s decision to refuse the nomination relating to the applicant’s visa application by The Trustee For Rashays Macquarie Unit Trust.
Therefore, the applicant is not the subject of an approved nomination.
Therefore, cl.186.223(2) is not met.
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.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Michael Cooke
Senior 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.

[2020] AATA 841

17 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Appeal

Statutory Construction