HU (Migration)

HU (Migration) [2018] AATA 3412 (31 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yinghui Hu
CASE NUMBER:  1725268
DIBP REFERENCE(S):  BCC2017/2305877
MEMBER:Katie Malyon
DATE:31 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 31 July 2018 at 12:17 pm
CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Whether the applicant is subject of an approved nomination – Where the applicant is the subject of two nominations – Whether a nomination other than the declared nomination can be relied upon – Consideration of the court’s findings in Singh – Wording of relevant clauses substantially the same – Court’s findings in Singh persuasive – Nominated position is not the subject of an approved nomination – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), rr 5.19(1), 5.19(3), Schedule 1, Items 1114B(3)(d), 1114C(3)(d), Schedule 2, cls 186.223, 187.223
CASES
Singh v MIBP [2017] FCAFC 105
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
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 26 September 2017 to refuse to grant the applicant, Mr Yinghui Hu, an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).
Mr Hu applied for the visa on 29 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). 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 Agreement stream. Relevant provisions of Schedule 1 and Schedule 2 to the Regulations referred to in this decision are extracted in the Attachment to this decision.
In the present case, Mr Hu is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Marketing Officer. This stream is designed for Subclass 457 visa holders who have worked with their sponsoring employer for the past 2 years and that employer has offered them a permanent position in the same occupation.
The delegate refused to grant the visa because Mr Hu did not meet cl.186.223 of Schedule 2 to the Regulations as the nomination application lodged by his employer Lordear Pty Ltd (the Company) on 29 June 2017 was refused by the Department on 9 August 2017 due to its failure to meet criteria in r.5.19(3) of the Regulations. A copy of the delegate’s decision to refuse Mr Hu’s visa application was provided to the Tribunal.
Background
On 16 April 2018, the Tribunal wrote to Mr Hu 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 Hu that the Company had not applied to the Tribunal for review of the Department’s refusal on 9 August 2017 of the related nomination. 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 as there is no approved nomination by the Company in respect of him and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105 (Singh’s case), this is a ‘once off’ process. The Tribunal requested a response to its s.359A letter on or before 30 April 2018 failing which it may make a decision on the review without taking any further action to obtain Mr Hu’s views on the information.
Mr Hu’s representative responded to the Tribunal’s s.359A letter on 30 April 2018. His representative submits as follows:
1)The Full Federal Court in Singh’s case deals with a Subclass 187 visa application under the criteria for Direct Entry stream (Reg. 187.233). Mr Hu’s application is for a Subclass 186 visa application under the Temporary Residence Transition stream (Reg. 186.223). The structures of these two visa criteria in Schedule 2 to the Regulations are different.
2)Relevant to the current application, in Singh’s case, Her Honour Judge Mortimer determined Mr Singh’s argument on the basis of possible future nomination application(s) (“futility”) not as a reason for that decision but as obiter dicta (“Strictly, it is unnecessary to determine the question of futility…” see [81] of the Singh case).
3)The argument advanced by Mr Singh’s counsel was that the nominator would be able to lodge another visa nomination after the refusal of the visa, while the matter remained before the Tribunal.
4)Her Honour then considered the interpretation of Reg.187.233’s provisions to determine whether any later lodged nomination would be able to save the 187 visa application. She accepted the Minister’s submissions that 187.233 imposes one single requirement, which is either “fulfilled or not fulfilled at the time of decision”.
5)Effectively, Her Honour’s interpretation of 187.233 excludes possibility of a 187 visa applicant relying on any further visa nomination to be lodged at a later time so as to “subsequently satisfy cl 187.233(1)” [90]. The reference to the “once off” process could be understood to apply only to exclude reliance on any future nomination application in relation to a 187 visa application.
6)In the current case, the nominating company, Lordear Pty Ltd has a nomination refusal review application before the Tribunal (case number 1702268). This nomination was lodged prior to the lodgement date of the visa application that is the subject of the current review application.
7)In the Singh case Her Honour has not considered the scenario of a visa application relying on a previously lodged nomination, however, she acknowledged that, “Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy that Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate in merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at [24]-[27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination”.
8)Since the Singh case has not contemplated the application of Reg.186.223 on any nomination applications that were lodged prior to an 186 visa application, “once off” or not, it is submitted that Her Honour’s interpretation of 187.233 in relation to the futility of relying on any future nomination, as obiter dicta, shall not be applied to the current review application. Instead, it is respectfully submitted that an interpretation that is favourable to the applicant should be adopted by the Tribunal.
9)Reg 186.223 of Schedule 2 to the Regulations which provides for grant of the current visa and relevant to this submission, reads as follows:
“(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 (Temporary Work (Skilled)) 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.
10)It is submitted that this clause is about the employment position, which is required under (1)(a) to be the position nomination in “an application for approval”, which does not specify whether it was an earlier one or an accompanying/concurrent one.
11)(1)(b) requires the applicant to be identified in that nomination as the holder of a subclass 457 work visa in relation to the position, which the applicant satisfied.
12)(1)(c) requires that the position declaration under 1114B(3)(d) was made in the visa application.
13)Relevantly, Paragraph 1114B(3)(d) of Schedule 1 reads:
“… (d) An applicant seeking to satisfy the primary criteria must declare in the application that the position to which the application relates is a position nominated:
(i) under regulation 5.19…”.
14)Again, 1114B(3)(d) requires the declaration to be “a position nominated” under regulation 5.19, not specifying whether one lodged before or concurrently with the visa application.
15)Further, the relevant provision, contained in 5.19 (3), starts with “The Minister must, in writing, approve a nomination if:…” Again this 5.19 requirement as provided by 1114B(3)(d) does not specify whether a nomination should be an older one or an concurrent one (Emphasis added in legislation quoted above).
16)In summary, there does not appear to be a legislative intention to restrict the subclass 186 visa application from relying on a previously lodged nomination in 186.223. This submission is made noting Her Honour Judge Mortimer’s interpretation of Reg. 187.233 in the Singh case that any nomination lodged later than a visa subclass 187 application could not be considered”.
The applicant therefore seeks that the Tribunal consider his review application after his nominated Lordear Pty Ltd’s nomination review application has been considered.”
The Tribunal initially invited Mr Hu to attend a hearing on 21 May 2018. However, his representative provided evidence of other commitments on that day and so the hearing was rescheduled.
Mr Hu appeared before the Tribunal on 8 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. Mr Hu was represented in relation to the review by his registered migration agent, who also attended the hearing.
Hearing
At the commencement of the hearing, Mr Hu told the Tribunal that he did not have a copy of his Subclass 186 visa application and, further, that he understood the issue before the Tribunal was ‘one of timing’. He said he was aware the Company had lodged two nominations in respect of him and that, in both, the Company has had the same intention, namely, to nominate him for permanent residence to continue in the role for Marketing Officer. Mr Hu said he has been sponsored in that position since March 2014. He added he doesn’t really understand the law and has relied on his immigration lawyer.
In response to Mr Hu’s observation that he did not have a copy of his Subclass 186 visa application lodged with the Department on 29 June 2017, the Tribunal provided him with a copy of his application. The Tribunal then discussed with Mr Hu statements made in his Subclass 186 visa application. It noted text as follows on the front page of his application under the heading ‘Application context’.
‘The position that this application relates to must be a position that the applicant has been nominated for by their prospective employer (emphasis added).
This application may be refused if incorrect information is provided relating to the nomination details.
The next section on the visa application form requests applicants ‘Give details of the related nomination’ (emphasis added). The Tribunal observed that Mr Hu’s application expressly states his Subclass 186 visa application relates to the nomination with transaction reference number (TRN) EGOF2IF9UT. Mr Hu acknowledged these details.
In addition, the Tribunal discussed with Mr Hu the declaration made by him on page 9 of his visa application in which, as applicant, he positively declares that:
‘… the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection. (Note: This application will not be valid if the details provided cannot be matched to a nomination that has been lodged with the Department of Immigration and Border Protection)’ (emphasis added).
Mr Hu acknowledged he had made the necessary declaration as set out in his Subclass 186 visa application. He had made his declaration in relation to the Company’s nomination with TRN EGOF2IF9UT.
The Tribunal then referred to the provisions in cl.186.223 of Schedule 2 to the Regulations which require that the position to which Mr Hu’s Subclass 186 visa relates is a position:
· nominated in an application for approval that identifies him in relation to the position and is made in relation to which he is identified as the holder of a 457 visa; and,
· in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in his visa application.
It noted that, consistent with these requirements, it was not possible to lodge a Subclass 186 visa application unless a declaration mentioned in paragraph 1114B(3)(d) had been made. The Tribunal observed that, based on its review of his Subclass 186 visa application lodged 29 June 2017 – a copy of which he now had before him - it was clear that he had made the necessary declaration and also provided details on the first page of his visa application of the Company’s related nomination with TRN EGOF2IF9UT.
Based on its review of Departmental records and consistent with Mr Hu’s advice at the commencement of the hearing, the Tribunal observed that he had been nominated for permanent residence in two nomination applications made by the Company. It noted that the first nomination with TRN EGOBWJ9P6J was lodged on 30 June 2016 but it was refused on 19 January 2017 (the First Nomination). The Tribunal also observed the Department’s refusal of the First Nomination is currently the subject of review before the Tribunal. Mr Hu acknowledged he was aware his aunt, the managing director of the Company, appeared before the Tribunal on 7 June 2018 (that is, the day before Mr Hu’s hearing) in relation to the Tribunal’s review of the First Nomination. The Tribunal then noted a second nomination by the Company with TRN EGOF2IF9UT was lodged on 29 June 2017 (the Second Nomination), the same day that Mr Hu lodged his Subclass 186 visa application which is the subject of this review before the Tribunal. However, the Second Nomination was refused by the Department on 8 August 2017 and, as a result, the Department refused his related Subclass 186 visa application on 26 September 2017. This lead to his application to the Tribunal for the current review of his visa application. The Tribunal observed that, as set out in its s.359A letter, no review application had been lodged with the Tribunal in relation to the Department’s refusal of the Second Nomination.
Mr Hu acknowledged the Tribunal’s explanation and stated that he ‘now understands the law’ that led to refusal of his Subclass 186 application: it was due to refusal of the Second Nomination. The Tribunal reminded Mr Hu of its letter issued pursuant to s.359A of the Act prior to the hearing and the decision of the Full Federal Court of Australia decision in Singh’s case. It observed that, in Singh’s case, the Court held that words identical to those in cl.186.233 of Schedule 2 to the Regulations refer to a factual event, namely, whether an employer nomination had been made and about which the visa applicant has made the required declaration in their visa application: one nomination application, one related visa application. As explained by Mortimer J (Bromberg and Jagot JJ agreeing) in Singh’s case, the scheme is a ‘once off’ process.[1]
[1] Singh v MIBP [2017] FCAFC 105, Mortimer J at [90]
In addition, the Tribunal observed that, notwithstanding it is the same position of Marketing Officer that has been nominated by the Company in both the First Nomination and the Second Nomination, his Subclass 186 visa application makes reference to the Second Nomination not the First Nomination. Mr Hu said he ‘understands’. He then asked about the ‘possibility of making another declaration because, right from the beginning’, he feels as if the applications (that is, both of the Company’s nominations and his visa application the subject of review) ‘are connected’ but he ‘did not have the benefit of legal knowledge’. The Tribunal recommended Mr Hu discuss the matter further with his representative noting that it is not the role of the Tribunal to provide immigration assistance to review applicants.
Asked why he did not use the TRN for the First Nomination in Mr Hu’s visa application lodged on 29 June 2017 given review of the First Nomination matter is still ongoing before the Tribunal as it is yet to make its decision on that nomination rather than initiate and lodge the Second Nomination and then use the TRN for the Second Nomination in Mr Hu’s visa application, the representative said he thought it afforded an ‘opportunity to have a safety net’. He added that he ‘considered it was safer to have a fresh nomination to link to a fresh visa application’ and that there was ‘no intention to exclude’ the First Nomination by referring to the Second Nomination in My Hu’s visa application as it was his understanding at the time the visa application was lodged (on 29 June 2017) that the requirements in the legislation did not exclude the possibility that a visa application could not rely on more than one nomination. The representative added that, following the decision in Singh’s case a fortnight later on 14 July 2017, it has been the case that a visa application cannot be related to a later lodged nomination.
Mr Hu’s representative then echoed the comments made in his submission lodged with the Tribunal in response to its letter issued pursuant to s.359A of the Act as outlined above in para [7]. By way of summary of his earlier submissions, the representative stated that he seeks to distinguish the decision of the Full Federal Court of Australia in Singh’s case
because that decision considered:
a)different criteria, namely, the provisions in relation to a Subclass 187 visa in the Direct Entry stream – by comparison, Mr Hu’s visa application is for a Subclass 186 visa in the Temporary Residence Transition stream; and,
b)the possibility of a later lodged nomination application by a nominator being linked to an existing employer nominated visa application - by comparison, Mr Hu’s situation is a whole different set of circumstances because, when he lodged Mr Hu’s Subclass 186 visa application, he had in mind linking two nominations to the visa application (that is, the First Nomination and the Second Nomination) and, in any event, the Court in Singh’s case was responding to Counsel for Mr Singh arguing that a new nomination could be lodged in the future.

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether Mr Hu meets cl.186.223 of Schedule 2 to the Regulations.
Nomination of a position
For applicants in the Temporary Residence Transition stream, cl.186.223 of Schedule 2 to the Regulations requires that the position to which the 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 mentioned in paragraph 1114B(3)(d) of Schedule 1 of the Regulations which is required to be made as part of the Subclass 186 visa application. It is also a requirement that the Minister has approved the nomination.
In addition, this criterion also requires that:
·the nomination 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 6 months after the nomination of the position was approved.
The Tribunal has carefully considered Mr Hu’s representative’s submissions made in his letter of 30 April 2018 and during the course of the hearing.
The Tribunal accepts that the Court in Singh’s case was commenting on cl.187.233 of Schedule 2 to the Regulations: that is, the Court’s comments relate to a Subclass 187 Regional Sponsored Migration Scheme (RSMS) visa in the Direct Entry stream. However, while some provisions of Part 187 of Schedule 2 to the Regulations for RSMS visas differ from provisions relating to Subclass 186 Employer Nomination Scheme (ENS) visas, the Tribunal is satisfied that there are no meaningful differences in text of the provisions set out in cl.187.233 when compared with the provisions set out in cl.186.223 of Schedule 2 to the Regulations as claimed by Mr Hu’s representative. Relevant provisions of the Regulations at the time of lodgement of Mr Hu’s visa application are set out in the Attachment to this decision.
The provisions of cl.186.223 and cl.187.233 of Schedule 2 to the Regulations are identical with the following easily explained exceptions:
1)cl.186.223(1)(b) in respect of ENS Temporary Residence Transition stream is not replicated in cl.187.233 for RSMS Direct Entry stream (although it is replicated in cl.187.223(1)(b) for the RSMS Temporary Residence Transition stream) - this is due to the fact that cl.186.223(1)(b) and cl.187.223(1)(b) which both deal with the Temporary Residence Transition stream require the position the subject of the employer’s nomination to be the position “in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa”: that is, for the purposes of a visa application in both the ENS and RSMS Temporary Residence Transition streams it is a requirement that the position to which the visa application relates is the position in relation to which the visa applicant already holds a Subclass 457 visa.
The Tribunal is of the opinion that the provisions set out in cl.186.223(1)(b) of Schedule 2 to the Regulations have no application to criteria for the Direct Entry stream. The Direct Entry stream for visa applicants seeking permanent residence - pursuant to either an RSMS or ENS nomination - facilitates applications by prospective employees who either live overseas or who do not otherwise meet criteria for the Temporary Residence Transition stream, typically, because they do not have 2 years employment experience with their nominating employer in Australia.
Accordingly, it is entirely appropriate that cl.186.223(1)(b) which is required to be met by visa applicant Mr Hu is not replicated in cl.187.233 which was required to be met by the visa applicant in Singh’s case as the visa applicant in that case was not applying in the ENS Temporary Residence Transition stream.,
2)cl.187.233(2) for RSMS Direct Entry is not replicated in cl.186.223 for the ENS Temporary Residence Transition stream (although it is replicated in cl.186.233(2) for the ENS Direct Entry stream) - cl.187.233(2) and.186.233(2) deal with Direct Entry criteria and require that the person who will employ the visa applicant is the person who made the nomination application.
The Tribunal is of the opinion that the provisions in cl.187.233(2) of Schedule 2 to the Regulations have no application to the criteria for the Temporary Residence Transition stream. This is so because the decision-maker needs to be satisfied that the visa applicant applying under the Direct Entry stream (irrespective of whether it is pursuant to an ENS or an RSMS nomination) will work with the nominator on the basis that the visa applicant has either not previously worked with the nominator or has not worked with the nominator for the requisite minimum period of 2 years.
In the circumstances, it is entirely appropriate that cl.187.233(2) is not required to be met by visa applicant Mr Hu although this criteria was required to be met by the visa applicant in Singh’s case.
3)cl.186.223(1)(b) in respect of the ENS Temporary Residence Transition stream
and cl.187.233(1)(b) for the RSMS Direct Entry stream refer to different paragraphs in Schedule 1 regarding the relevant declaration to be made in the visa application for grant of the visa. Respectively, reference is made to para 1114B(3)(d) and para 1114C(3)(d). This merely reflects correct referencing of the relevant Schedule 1 Item 1114B for ENS applications and Item 1114C for RSMS applications.
Relevant for the purposes of this decision, the Tribunal is satisfied that for each of the 4 streams - ENS Temporary Residence Transition stream, ENS Direct Entry stream, RSMS Temporary Residence Transition stream and the RSMS Direct Entry stream - it is a requirement that the position to which the application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 for ENS applications or paragraph 1114C(3)(d) of Schedule 1 for RSMS applications was made in the application for grant of the visa: cl.186.223(1)(c), cl.186.233(1)(b), cl.187.223(1)(c) and cl.187.233(1)(b) of Schedule 2 to the Regulations.
Accordingly, the Tribunal finds that there are no meaningful differences in text of the provisions set out in cl.187.233 when compared with the provisions set out in cl.186.223 of Schedule 2 to the Regulations. In the circumstances, the Tribunal does not accept the representative’s submission that the provisions in relation to a RSMS Direct Entry stream Subclass 187 visa applicant as considered by the Court in Singh’s case are different from the ENS Temporary Residence Transition stream Subclass 186 relevant to the assessment of Mr Hu’s visa application such that findings of the Full Federal Court in Singh’s case are distinguishable.
The Tribunal has also considered whether an earlier nomination application - in this case, the First Nomination - can be linked to a later lodged Subclass 186 visa application consistent with submissions by Mr Hu’s representative. As noted above and accepted by Mr Hu’s representative, the Court in Singh’s case held that a later nomination in respect of the same position, made by the same employer, could not be relied upon to meet the cl.187.233 criteria.
In Singh’s case, the Full Federal Court considered contentions from Mr Singh that the expression “the nomination” in cl 187.233(3) of the Regulations was not limited to the original nomination which accompanied the visa application. Clause 187.233 relevantly provides:
(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);
…; 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.
…
(3)The Minister has approved the nomination.
The Court rejected Mr Singh’s argument which relate to his construction of the words “the nomination” as set out in cl.187.233(3) of the Regulations. Of relevance to this decision, these words are identical to cl.186.223(2) of the Regulations. Essentially, the Court concluded that the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. The words “position nominated in an application for approval that seeks to meet the requirements of” r.5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. As observed by Mortimer J (Bromberg and Jagot JJ agreeing) in Singh’s case, the “position” referred to is a particular job with a particular employer that existed a particular point of time, and in a particular set of factual circumstances: the point in time is the point at which the employer nomination is submitted for approval under r.5.19(1) of the Regulations and it is to that act that the visa applicant’s declaration in the visa application is directed.[2]
[2] Ibid, para [88]
Her Honour Mortimer J states the structure of r.5.19 of the Regulations contemplates that the Minister is obliged to either accept or reject the nomination depending on whether criteria are met and this contemplates an assessment by the Minister at a particular time, subject only to “variation to this assessment by the Tribunal” as on merits review there is an opportunity for an employer to use new or further material in order to meet criteria that the nomination should be approved: it is in this way that the time of decision criteria can operate on merits review.[3]
[3] Ibid, para [89]
Mortimer J also observes that an examination of the nature and range of matters set out in r.5.19 of the Regulations discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of the ministerial approval of an employer nomination are intended to allow a visa applicant to secure an employer nominated permanent residence visa. By way of conclusion, Her Honour states the scheme is intended to be a “once off” process so that the visa application is considered against a specific employer nomination and a specific approval of the nomination by the Minister, or his delegate[4] (emphasis added).
[4] Ibid, para [90]
For reasons outlined above, the comparable provisions in cl 187.233(3) of the Regulations consider by the Court in Singh’s case are, in the context of Mr Hu’s visa application, cl.186.223(2) of the Regulations. Clause 186.223 relevantly provides:
(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
…

(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.
Having regard to the Court’s decision in Singh’s case the Tribunal discussed with Mr Hu at the hearing that, as indicated in his Subclass 186 visa application, he made the requisite paragraph 1114B(3)(d) declaration in his Subclass 186 visa application: this was necessary for the purposes of his making a valid application. The declaration by Mr Hu in his visa application relates to the Company's nomination made on 29 June 2017 for the position of Marketing Officer with TRN EGOF2IF9UT, that is, the Second Nomination. As set out in the Tribunal’s letter issued pursuant to s.359A of the Act sent to Mr Hu on 16 April 2018, this was the nomination refused by the Department on 8 August 2017 and, relevantly, that decision was not the subject of review to the Tribunal.
Mr Hu’s representative told the Tribunal that when he assisted Mr Hu lodge his Subclass 186 visa application there was no intention to exclude the First Nomination by referring to the Second Nomination. However, the Tribunal notes that the Department’s on-line platform ImmiAccount used by applicants and/or their representatives to lodge an online application allows for a Subclass 186 visa applicant to insert reference to a single nomination TRN only. In the view of the Tribunal, this is entirely consistent with the Full Federal Court of Australia’s analysis of the RSMS visa scheme as set out in Part 187 and, by analogy, the ENS visa scheme in Part 186 of the Regulations: it is a once off process. In the view of the Tribunal and having regard to the fact that the Company’s First Nomination was, at the time of lodgement of Mr Hu’s Subclass 186 visa application, yet to be decided by the Tribunal it would have been appropriate for Mr Hu to insert the TRN for the First Nomination when he applied for his visa on 29 June 2017, instead of the TRN for the Second Nomination. At that time, he still held a substantive visa (his 4 year Subclass 457 visa sponsored by the Company granted on 28 March 2014 did not expire until 28 March 2018) and so he was not barred from applying for a Subclass 186 visa whilst in Australia.
On the evidence before it, the Tribunal finds that the Second Nomination was not approved. The Tribunal also finds that the Company did not lodge an application for review of the Department’s refusal of the Second Nomination.
In his Subclass 186 visa application lodged 29 June 2017 and which was refused by the Department on 26 September 2017, Mr Hu made the necessary paragraph 1114B(3)(d) declaration. The Department’s on-line application form in ImmiAccount allowed him to inset details on only one nomination. In his on-line application, Mr Hu referred to the TRN for the Second Nomination. As the Second Nomination was refused and has not been the subject of a review application, the Tribunal finds that Mr Hu is not, and cannot be, the subject of an approved nomination.
While the Tribunal recognises it is not bound by the decision in Singh’s case in the context of the fact scenario presented in Mr Hu’s case, the Tribunal has found it persuasive in its interpretation of the issue raised for consideration. In particular, the Tribunal has had regard to dicta of Mortimer J that the words, in this case, in cl.186.223 ‘the position (a) nominated in an application for approval that seeks to meet the requirements of’ r.5.19(3) refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in their visa application. Further, the ’position’ referred to is a particular job - in this case, Marketing Officer - with a particular employer are – in this case, the Company – at a particular point in time and in a particular set of factual circumstances. As observed by Mortimer J, the ‘point in time is the point at which the employer nomination is submitted for approval under r.5.19(1)’ and it is ‘that act that the visa applicant’s declaration in the visa application is directed’.[5] In this case, the visa applicant’s declaration refers to the Second Nomination.
[5] Ibid, para [89]
Having regard to available evidence and the decision in Singh’s case, the Tribunal finds that Mr Hu cannot satisfy cl.186.223(2) of Schedule 2 to the Regulations because the position to which his visa application relates and the one in relation to which his paragraph 1114B(3)(d) declaration was made is not, and cannot be, the subject of an approved nomination.
Mr Hu 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 applicant an Employer Nomination (Permanent) (Class EN) visa.
Katie Malyon

Member
Attachment – Extracts from the Migration Regulations 1994
Schedule 1 - Classes of visas
1114B Employer Nomination (Permanent) (Class EN)

(1) Form: The approved form specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
…
(3) Other:
(a) An application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
(b)  An applicant may be in or outside Australia, but not in immigration clearance.
(c)  An applicant in Australia must hold:
(i)  a substantive visa; or
(ii)  a Subclass 010 (Bridging A) visa; or
(iii)  a Subclass 020 (Bridging B) visa; or
(iv)   a Subclass 030 (Bridging C) visa.
(d) An applicant seeking to satisfy the primary criteria must declare in the application that the position to which the application relates is a position nominated:
(i) under regulation 5.19; or
(ii) in accordance with a labour agreement that is in effect, by an employer that is a party to the labour agreement.
(da)  An applicant seeking to satisfy the primary criteria must declare in the application (the primary application) whether or not either:
(i) the applicant; or
(ii)  any person who has made a combined application with the applicant;
has engaged in conduct, in relation to the primary application or the combined application, that constitutes a contravention of subsection 245AS(1) of the Act.
(e)  An application by a person claiming to be a member of the family unit of a person who is an applicant for an Employer Nomination (Permanent) (Class EN) visa may be made at the same time as, and combined with, the application by that person.
(4) Subclasses:
           Subclass 186 (Employer Nomination Scheme)
1114C Regional Employer Nomination (Permanent) (Class RN)

(1) Form: The approved form specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
…
(3) Other:
(a) An application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
(b)  An applicant may be in or outside Australia, but not in immigration clearance.
(c)  An applicant in Australia must hold:
(i)  a substantive visa; or
(ii)  a Subclass 010 (Bridging A) visa; or
(iii)  a Subclass 020 (Bridging B) visa; or
(iv)  a Subclass 030 (Bridging C) visa.
(d)  An applicant seeking to satisfy the primary criteria must declare in the application that the position to which the application relates is a position nominated:
(i)  under regulation 5.19; or
(ii)  in accordance with a labour agreement that is in effect, by an employer that is a party to the labour agreement.
(da)  An applicant seeking to satisfy the primary criteria must declare in the application (the primary application) whether or not either:
(i) the applicant; or
(ii) any person who has made a combined application with the applicant;
has engaged in conduct, in relation to the primary application or the combined application, that constitutes a contravention of subsection 245AS(1) of the Act.
(e)  An application by a person claiming to be a member of the family unit of a person who is an applicant for a Regional Employer Nomination (Permanent) (Class RN) visa may be made at the same time as, and combined with, the application by that person.
(4) Subclasses:
Subclass 187 (Regional Sponsored Migration Scheme)
….
Schedule 2 - Provisions with respect to the grant of some classes of visas
Part 186 - Employer Nomination Scheme
…

186.22 Criteria for Temporary Residence Transition stream
Note:    These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 186 visa in the Temporary Residence Transition stream.
…

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 (Temporary Work (Skilled)) 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.
…
186.23 Criteria for Direct Entry stream
Note:    These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 186 visa in the Direct Entry stream.
…
186.233 (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)(i); or
(ii)  subregulation 5.19(2) as in force before 1 July 2012; and
(b) 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 person who will employ the applicant is the person who the 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 not more than 6 months after the Minister approved the nomination.
…
Part 187 – Regional Sponsored Migration Scheme
187.22 Criteria for Temporary Residence Transition stream
Note These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 187 visa in the Temporary Residence Transition stream.
..
187.223 (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 (Business (Long Stay)) visa; and
(c) 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 Minister has approved the nomination.
(3) The nomination has not subsequently been withdrawn.
(4) The position to which the application relates is located in regional Australia.
(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.

187.23 Criteria for Direct Entry stream
Note These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 187 visa in the Direct Entry stream.
…

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
(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.
…
oOOo

[2018] AATA 3412

31 July 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction