Hu (Migration) - [2017] AATA 864

Hu (Migration) [2017] AATA 864 (3 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Wenli Hu
Mr Yuanchao Li
Mr Siyuan Guo
CASE NUMBER:  1600973
DIBP REFERENCE(S):  CLF2011/47637, CLF2016/11097, CLF2016/11100
MEMBER:Bruce Henry
DATE:3 May 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Residence) (Class BW) visas.
Statement made on 03 May 2017 at 11:15am
CATCHWORDS
Migration – Employer Nomination (Residence) (Class BW) visa – Subclass 856 (Employer Nomination Scheme) – Skills assessment – Sales and Marketing Manager – Nomination refused – Applicant departed Australia – Decision determined on evidence available

LEGISLATION
Migration Act 1958, ss 65, 362B(2)
Migration Regulations 1994, r 5.19, Schedule 2, cl 856.213, cl 856.221
CASES

Malecaj v MIBP [2016] FCA 1508
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 on 12 October 2011 to refuse to grant the applicants Employer Nomination (Residence) (Class BW) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 21 March 2011 on the basis of the first named applicant's (the applicant) proposed employment in the position of Sales and Marketing Manager (ANZSCO 131112). The position had been nominated for approval as an approved appointment under r.5.19 of the Migration Regulations 1994 (the Regulations).
At the time of application, Class BW contained two subclasses: Subclass 856 (Employer Nomination Scheme) and 857 (Regional Sponsored Migration Scheme). As the nominated position for which the visa is sought is the subject of an employer nomination that was made on the basis of meeting the requirements of r.5.19(2) of the Migration Regulations 1994 (the Regulations), the relevant subclass in the present case is Subclass 856. The criteria for this visa subclass are set out in Part 856 of Schedule 2 to 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.
The delegate refused to grant the visas because the applicant did not meet cl.856.213 and cl.856.221 of Schedule 2 to the Regulations because she had not provided evidence that an assessing authority had assessed her skills as suitable for the position for which she had been nominated, and because the nomination associated with her application had been refused.
The applicants were represented in relation to the review by a registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first issue in the present case is whether the applicant met the requirements of cl.856.213, which required, so far as is relevant, that ‘an assessing authority specified by the Minister in a Gazette Notice for this sub-subparagraph as the assessing authority for the occupation to which the appointment relates has assessed the applicant's skills as suitable’ (cl.856.213(b)(i)(a)). As noted above, there is also an issue as to whether cl.856.221 is satisfied.
The decision record of the delegate, which the applicant provided to the Tribunal with the application for review, states:
I have noted that at the time of application, you have not provided evidence that an assessing authority has assessed your skills as suitable for the position you have applied for.
Given this information, it appears that the assessing authority had not assessed your skills as suitable on or before the date of application (17 March 2011). As this requirement was not satisfied at the time of application, it appears that you fail to satisfy the skill requirement at the time of application
Since, at the time of application, an assessing authority specified by the Minister in a Gazette Notice for this sub- subparagraph as the assessing authority for the occupation to which the appointment relates has not assessed Ms Hu's skills as suitable, Ms Hu does not meet 856.213(b)(i)(A).
As Wenli Hu does not meet 856.213(i)(A), Wenli Hu does not meet 856.213(b). Since Wenli Hu does not meet 856.213(b), Wenli Hu does not meet 856.213.
The delegate also notes in the decision record that the nomination of the applicant was refused by the Department on 15 August 2011, and that the applicant therefore failed to satisfy cl.856.221 of Schedule 2 of the Regulations which requires that at the time of the decision the appointment for which she had been nominated was approved and was still available.
The applicant applied for review of this decision, however no further material was provided either with the application for review or subsequently.
On 12 April 2017 the Tribunal wrote to the applicants advising that it had considered all the material before it relating to the application, but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 2 May 2017. The letter was sent by email to the applicant’s representative at the address for service that was provided to the Tribunal in the application for review.
On 24 April 2017 the Tribunal received an email from the applicants’ representative advising that he was no longer representing the applicants and providing the name of another registered migration agent from the same firm whom he said was now the representative. He advised that he had provided a copy of the hearing invitation to the new representative.
On the same day, the Tribunal received an email from the other agent, stating:
Please be advised that despite numerous attempts to contact the appellant that we cannot contact her. The phone numbers are disconnected and we have also sent emails which remain unanswered for over a week.
The former migration agent assigned to this matter has emailed you today. We obviously cannot continue with this matter even if she was to reappear with only a week to go till the hearing date.
This agent telephoned the Tribunal on 24 April 2017 to confirm that the applicants’ telephone numbers are disconnected and that he had reason to believe that they ‘may have relocated overseas’.
The Tribunal sent two SMS hearing reminders to the mobile number provided by the applicant in the application for review. Both messages failed to be delivered.
The Department’s movement records indicate that all of the applicants departed Australia on 19 January 2017 and have not returned. Those records state that at the time of departure the applicants all held visas which did not entitle them to return to Australia.
The Tribunal notes that in Malecaj v MIBP [2016] FCA 1508 (Pagone J, 13 December 2016) at [14], the Court found that the Tribunal erred when it exercised its discretion under s.362B(2) by not rescheduling a hearing where it knew the appellant’s reason for not being able to attend was that he was not in Australia, and that his absence from Australia was lawful and temporary. That case differs from the present case because the applicant in Malecaj was offshore on a bridging visa which would enable him to return to Australia up to two months after the scheduled hearing date, whereas in the present case the applicants held bridging visas which did not entitle them to leave and re-enter Australia.
The applicants did not appear before the Tribunal on the day and at the time and place at scheduled for the hearing, and neither they nor the representative have made any further contact with the Tribunal.
In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. In making that finding, the Tribunal has had regard to the applicants’ failure to notify the Tribunal that they were leaving Australia, and their failure to provide any updated contact information to the Tribunal, or indeed to their representative, upon their departure.
Accordingly, this matter has been determined on the evidence available to the Tribunal.
The Tribunal notes that the applicants were notified in the decision record of the delegate that the applicant’s failure to provide a favourable skills assessment meant that she did not meet the requirements of cl.856.213, and that the refusal of her nomination meant that she did not satisfy cl.856.221, however she has not submitted any additional evidence or arguments in support of the application to the Tribunal during the course of this review.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her, and the Tribunal is not required to accept uncritically any and all the claims made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
On the evidence available to it, the Tribunal is not satisfied that the requirements of cl.856.213 or cl.856.221 of Schedule 2 of the Regulations are met.
The applicant has only sought to satisfy the criteria for a Subclass 856 visa. No claims have been made in respect of the other visa in the class. As the applicant has not met the criteria for a Subclass 856 visa, the decision under review must be affirmed.
In relation to the other applicants, for their applications to succeed they must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 856 visa: cl.856.321. As the decision under review in respect of the applicant is to be affirmed, the other applicants cannot meet cl.856.321.
DECISION
The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Residence) (Class BW) visas.
Bruce Henry

Member