JI (Migration)

[2018] AATA 2951

JI (Migration) [2018] AATA 2951 (19 July 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr HONGWEI JI

Ms Qingying Dai Mr Jiayan Ji

CASE NUMBER:  1723843

DIBP REFERENCE(S):  BCC2017/2337261

MEMBER:  R. Skaros

DATE:  19 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 July 2018 at 11:43am

CATCHWORDS
Migration – Employment Nomination (Permanent) –Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Nomination approval – Tribunal affirmed nomination refusal – Practice and Procedure – Decision made on review – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A, 360, 359C, 363C
Migration Regulations 1994, r 5.19 Schedule 2 cl 186.223

CASES
Hasran v MIAC [2010] FCAFC 40

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 Immigration and Border Protection on 3 October 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

1. 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).

1. 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 Agreement stream.

1. 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 of Sales and Marketing Manager with Nepean Valley Campers Pty Ltd. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

1. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination of the position was not approved.

1. The applicants applied for review of the delegate’s decision and a copy of the decision record was provided to the Tribunal. The applicants were represented in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the nomination of the position has been approved.

Nomination of a position

1. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, 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 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.

1. The applicant applied for the visa on the basis of an employer nomination lodged by Nepean Valley Campers Pty Ltd. The Tribunal is satisfied on the information before it that the nomination identified the applicant as the relevant Subclass 457 visa holder and that it was

in reference to that nomination that the relevant declaration was made by the applicant in the visa application, as required by cl.186.223(1).

1. The nomination referred to above was refused by the Department on 11 August 2017. Nepean Valley Campers Pty Ltd applied for review of the delegate’s decision not to approve the nomination. On 30 April 2018, the Tribunal confirmed its earlier decision to dismiss the application for review of the Department’s decision to refuse the nomination.

1. On 21 May 2018 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the Tribunal’s decision confirming the dismissal of the application for review of the nomination refusal made by Nepean Valley Campers Pty Ltd, which the Tribunal explained is relevant to the requirement in cl.186.223(2) which requires the relevant nomination to be approved.

1. The invitation was sent to the authorised representative at the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 4 June 2018 the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

1. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

1. The Tribunal is satisfied that the invitation to comment was correctly sent to the authorised recipient’s email and that the applicant was properly informed that a non-response may result in the Tribunal proceeding to a decision on the information before it. Furthermore, the information before the Tribunal indicates that the relevant nomination has not been approved, and given the applicant would be unable to rely on any other nomination to succeed in this review, the Tribunal considers it futile to delay making its decision in this case. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

1. As the relevant nomination has not been approved, it follows that the applicant does not meet the requirements of cl.186.223(2). Consequently, cl.186.223 has not been met as a whole.

1. 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.

1. The secondary applicants applied for the visa on the basis of being members of the first named applicant’s family unit. The first named applicant does not meet the primary requirements for the visa and there is no evidence before the Tribunal to suggest that any of the secondary applicants meet the primary requirements for the visa. In the circumstances, the Tribunal must also affirm the decision in respect of the secondary applicants.

DECISION

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

R. Skaros Member