Jamso (Migration)

[2023] AATA 3467

Jamso (Migration) [2023] AATA 3467 (10 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Janna Yoebhum Jamso

CASE NUMBER:  2205859

HOME AFFAIRS REFERENCE(S):          BCC2021/1436072

MEMBER:Katie Malyon

DATE:10 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 10 October 2023 at 1:26 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – social worker – subject of approved position nomination – related nomination application refused and no application for review – no documentation provided in support of visa review application, no substantive response to tribunal’s invitation to comment and loss of right to hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233(3)

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28
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 Home Affairs on 12 April 2022 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Bhutanese national Miss Janna Yoebhum Jamso, applied for the visa on 19 July 2021.  At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. Criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).  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. Miss Jamso is seeking the visa in the Direct Entry stream to work in the nominated position of Social Worker ANZSO 272511 with her nominating sponsor AXR Group Pty Ltd ABN 43 632 713 207 (the Company).

5. The delegate refused to grant the visa on the basis Miss Jamso did not meet cl 186.233 of Schedule 2 to the Regulations because the Company’s nomination was refused. Miss Jamso sought review of the delegate’s decision to refuse her Subclass 186 visa application.

6. Following refusal of her Subclass 186 visa application on 12 April 2022, an application for review was lodged with the Tribunal by her representative, Mr Abhinaya Bhandari of My Ambition Consulting.  Inconsistent with cl 5.1(a) of the Tribunal’s Migration and Refugee Matters Practice Direction, no documentation was lodged in support of the review application at the time it was filed with the Tribunal.    

7. On 24 August 2023, the Tribunal wrote to Miss Jamso and invited her to attend a MS Teams hearing on 15 September 2023.  The Tribunal’s hearing invitation was sent via her representative.

   The Tribunal’s s 359A letter

8. On 29 August 2023, the Tribunal wrote to Miss Jamso under s 359A of the Act inviting her to comment on or respond to information which the Tribunal considers would, subject to her comments or response, by the reason, or part of the reason for affirming the decision under review. The particulars of this information set out in its s 359A letter are the following:

   ·at the time you lodged your Subclass 186 visa application on 19 July 2021, you declared in your visa application that you were nominated by the Company;

   ·the Company’s nomination was refused by the Department of Home Affairs on 11 March 2022;

   ·as a consequence, the delegate refused your Subclass 186 visa application on 12 April 2022 on the basis that the Company’s nomination is not approved. This was because you did not meet cl 186.233(3) of Schedule 2 to the Regulations; and,

   ·the Company has not sought review of the delegate’s decision to refuse its nomination and, currently, there is no approved nomination in relation to your visa application.

9. In its s 359A letter, the Tribunal informed Miss Jamso that this information is relevant to the review because, subject to her comments or response, it indicates that the position to which her visa application relates is not the subject of an approved nomination made by the Company as required by cl 186.233(3) of Schedule 2 to the Regulations and that, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105 on 14 July 2017, this is a ‘once off’ process. The Court observed that even a new nomination in respect of the same position made by the same employer could also not be relied upon to meet this Schedule 2 criterion because the new nomination would not be the one that Miss Jamso declared in her visa application as the position to which her visa application relates.

10. Further, the Tribunal’s s 359A letter explained that this would be the reason, or part of the reason, for the Tribunal to affirm the decision under review as it is a requirement that Miss Jamso meets cl 186.233 of Schedule 2 to the Regulations at the time of decision. Miss Jamso was invited to provide her comments by 12 September 2023.

11. The Tribunal is satisfied that its 359A letter was properly dispatched to the email address of Miss Jamso’s then representative.  

12. On 6 September 2023, in anticipation of the hearing scheduled for 15 September 2023, the Tribunal called the representative to conduct a hearing test session.  The representative said that he was unaware of Miss Jamso’s hearing and stated that he had not received any of the Tribunal’s correspondence as the email address he had provided to the Tribunal when lodging the visa application no longer in use.  The Tribunal requested that he provide his updated contact details.  Mr Bhandari did not provide updated details despite his agreeing to do so.  On 11 September 2023, the Tribunal attempted to call Mr Bhandari but he was not available.  In the circumstances, the Tribunal sent copies of its hearing invitation and its
    s 359A letter direct to Miss Jamso’s personal email address on 11 September 2023.

13. No response was received either from Miss Jamso or her representative in response to the Tribunal’s letter s 359A letter by the due date of 12 September 2023. Miss Jamso has not commented on the adverse information set out in the Tribunal’s s 359A letter. Further, neither she, nor her representative on her behalf, have sought additional time in which to do so by the due date, 12 September 2023.

14. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, Miss Jamso is not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

15. On 14 September 2023, Miss Jamso called the Tribunal in relation to its email of 11 September 2023 referred to above at para [12] noting that the hearing scheduled for 15 September 2023 had been cancelled. The Tribunal informed Miss Jamso that this had occurred because no response had been received to the Tribunal‘s s 359A letter and nor had a request been received for additional time in which to respond to the information in that letter. Miss Jamso informed the Tribunal that her representative had told her that he had provided the Tribunal with his new email address and that the Tribunal was arranging a new hearing date for her. The Tribunal confirmed that no communication had been received from the representative regarding his new email address, despite his agreeing to provide this information to the Tribunal in his call on 11 September 2023. The Tribunal officer noted that the hearing cannot proceed as Ms Jamso has lost her right to a hearing since no response was received to the Tribunal’s s 359A letter in time but she could provide the Tribunal with any additional documentation to support her case pending the Tribunal’s decision.

16. Ms Jamso advised the Tribunal that she had terminated the services of her representative on 16 September 2023 and that all communication should be directed to her personally.  

17. Although Miss Jamso has not requested this, the Tribunal has considered whether it would be appropriate to adjourn the review under s 363(1)(b) of the Act to allow Miss Jamso additional time in which to provide the evidence to support her review application. In this regard, the Tribunal has considered whether evidence that Miss Jamso meets the relevant requirements of cl 186.233 is likely to be forthcoming, whether she has had a fair opportunity to provide the information already, and the significance of the information to Miss Jamso. The Tribunal has also taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1]and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

    [1] [2002] FCA 617.

    [2] [2012] FMCA 28.

18. In this case, the Tribunal considers that Miss Jamso has had sufficient time to provide the requested information. The Tribunal has delayed its decision for 3 weeks pending a response from Miss Jamso to the issue the subject of its s 359A letter. In these circumstances, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with
    s 359C of the Act.

19. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether Miss Jamso satisfies cl 186.233 of Schedule 2 to the Regulations.

    Nomination of a position

21. Clause 186.233 as applicable in this case is set out in full in an Attachment to this decision. Essentially, it requires that the position to which the application relates must be the subject of an application for approval of a nomination in the Direct Entry stream.  The position must be the one that was the subject of the declaration made as part of the current Subclass 186 visa application.  Further, where the associated nomination was made on or after 1 July 2017, it must identify the visa applicant in relation to the position.

22. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination;

    ·relevantly, 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 reg 1.13A and reg 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.

23. As stated above, the delegate refused to grant Miss Jamso’s visa on the basis that her Company’s nomination was refused by the Department on 11 March 2022.  The Company did not seek review of that decision in the Tribunal.

24. There is currently no evidence before the Tribunal to indicate that Miss Jamso’s Subclass 186 visa application is the subject of an approved nomination made by the Company with Transaction Reference Number (TRN) EGORAI1SJW as she declared in her Subclass 186 visa application. This was the TRN of the Company’s nomination. Therefore, cl 186.233(3) of Schedule 2 to the Regulations is not met by Ms Jamso. Consequently, cl 186.233 has not been met.

25. Miss Jamso has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream.  No claims have been made in respect of the other 2 visa streams.  As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

26. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Katie Malyon

    
    Member

    ATTACHMENT  – Extract from the Migration Regulations 1994

    Criteria for Direct Entry stream

    …

    186.233        (1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); 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 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.

    oOOo