Inotama (Migration)

[2020] AATA 2286

Inotama (Migration) [2020] AATA 2286 (2 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Eishi Inotama
Mrs Satomi Inomata
Master Kusa Inomata
Miss Shizuku Inomata

CASE NUMBER:  1820792

HOME AFFAIRS REFERENCE(S):          BCC2017/2276932

MEMBER:Stavros Georgiadis

DATE:2 June 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 2 June 2020 at 3:31pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – related position nomination refused – application for review of refusal withdrawn – no response to tribunal’s communications or appearance at hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 426A

Migration Regulations 1994 (Cth), Schedule 2, cll 186.233(3), 186.311

CASES

Luu v Renevier (1989) 91 ALR 39

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Yao-Jing Li v MIMA (1997) 74 FCR 275

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 Home Affairs on 29 June 2018 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 27 June 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 (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.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream to work in the position of Cook (ANZSCO 351411) as nominated by Masa and Associates Pty Ltd on 27 June 2017 in relation to the applicant.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations as there was no approved nomination for the position of Cook nominated by Masa and Associates Pty Ltd.

6. The applicant did not appear before the Tribunal at the scheduled hearing time and date on 2 June 2020 and no request for any adjournment had been made. The Tribunal had arranged to be assisted in the hearing by an interpreter in the Japanese and English languages. 

7. The Tribunal notes that the applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements set out in cl.186.223(2) of the Regulations for grant of the Subclass 186 visas.

   Nomination of a position

10. 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.

11. 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.

12. As aforementioned, the applicants did not attend the hearing at the scheduled time and date of 2 June 2020. The applicants’ representative had written to the Tribunal prior to the hearing confirming inability to contact his clients and provided mobile phone numbers to the Tribunal to attempt contact.  The Tribunal endeavoured to make contact with the applicants at the time and date for hearing on numbers provided but was ultimately unsuccessful.

13. In light of the above, pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

14. The Tribunal is required to consider ‘all of the facts of a case in total’ and come to its own view as to whether the applicants meet the requirements for grant of the Subclass 186 visas. 

15. While the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. The Tribunal, as decision maker, is not required to make the applicants’ case for them: Prasad v MIEA (1985) 6 FCR 155 at 169 70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437 at 451.

16. Although in the exercise of its review function, the Tribunal may obtain such information as it considers relevant, the High Court established in the case of SZIAI that there is not imposed upon the Tribunal ‘a general duty to undertake its own enquiries in addition to information provided to it by the applicant and otherwise under the Act.’ (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 [1]).

17. In the above circumstances, where written notice has been sent via the duly authorised representative, inviting the applicants to give evidence and present arguments, the Tribunal accepts that the applicants have been provided with a reasonable opportunity to provide oral evidence in support of the application but have failed to do so.  No adjournment or other alternative arrangements have been requested or made.

18. On 3 October 2019 the nominating employer, Masa and Associates Pty Ltd withdrew the application for review of the nomination refusal made by the Department (AAT casefile 1816969). On 11 October 2019, the Tribunal accepted the written withdrawal of the review and therefore, the nomination refusal for the position by the Minister’s delegate remains in effect.  The applicants’ representative confirmed the withdrawal by Masa and Associated Pty Ltd in phone correspondence with the Tribunal dated 25 May 2020 as case-noted on the Tribunal’s electronic casefile.  The following day he confirmed in writing his ongoing inability to reach his clients.

19. There is no evidence before the Tribunal of any approved nomination for the occupation of Cook in relation to the applicant, and for the purposes of cl.186.223(2), the Tribunal so finds.

20. Therefore, cl.186.223 is not met.

21. 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 in respect of all applicants as claimed members of the same family unit.

    DECISION

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

    Stavros Georgiadis
    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.