Kapuhen Thuduwage (Migration)

[2019] AATA 2937

Kapuhen Thuduwage (Migration) [2019] AATA 2937 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thushara Priyanjan Kapuhen Thuduwage

CASE NUMBER:  1807893

HOME AFFAIRS REFERENCE(S):           BCC2017/1431193

MEMBER:Alison Mercer

DATE:26 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 March 2019 at 3:04pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Accountant – subject of an approved nomination – nomination application refused – no pending application for review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
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 2 March 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 April 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Accountant.

5. The delegate refused to grant the visa because he found that the applicant did not meet cl.186.223 of Schedule 2 to the Regulations, which requires that the applicant is the subject of an approved nomination. The delegate noted that the applicant’s employer’s nomination was refused by the Department on 28 June 2017.

6. The Tribunal received a review application from the applicant on 22 March 2018.  It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Kasun Gamlath, to be his representative and authorised recipient for correspondence.

7. On 22 January 2019, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing on 15 February 2019.  He was requested to provide any documents or submissions in support of his case prior to the hearing.

8. The applicant appeared before the Tribunal on 15 February 2019 to give evidence and present arguments. His agent did not attend the hearing.  At the commencement of the hearing, the applicant provided the following documents to the Tribunal:

   ·letter dated 23 April 2018 from the Department refusing to approve a nomination of the applicant made by Success Property Improvement Pty Ltd on 29 June 2017; and

   ·letter dated 14 May 2018 from the Tribunal acknowledging receipt of a review application made by Success Property Improvement Pty Ltd in relation to the above decision.

9. The applicant told the Tribunal that he remained employed as an Accountant by Success Property Improvement Pty Ltd.  His employer nominated him a second time after its first nomination was refused, and it was the second refusal that the employer sought review of on 23 April 2018. The applicant said that to the best of his knowledge, both nominations were refused by the Department because the employer was considered not to have met the relevant training benchmark.  The applicant confirmed that he had also lodged another subclass 186 visa application in connection with the second nomination, which had also been refused and which was the subject of a separate review application to the Tribunal.

10. The Tribunal discussed with the applicant its view that the legal construction of cl.186.223 meant that it could only be satisfied by the original nomination made by Success Property Improvement Pty Ltd, which had been refused by the Department and not appealed to the Tribunal.  However, it could not be satisfied by a second nomination, even one made by the same employer for the same position.  The applicant said that his agent had advised him that this review application would most likely not be successful but said that he hoped that the reviews in relation to the second nomination and subclass 186 visa application would be successful. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

12. 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.

13. 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.

14. It is a requirement for both the Temporary Residence Transition and Direct Entry streams (cl.186.223 and cl.186.233 respectively) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2]

    [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).

    [2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186)  - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

15. This was the view taken in Singh v MIBP [2017] FCAFC 105[3] (which concerned an almost identically worded criterion for a subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.[4]

    [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

    [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

16. The Tribunal considers that although the Court’s comments were strictly obiter, they are nonetheless persuasive in relation to subclass 187 visas. As the relevant subclass 186 criteria are in the same terms, the Court’s reasoning is also applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.186.223 or cl.186.233 (as applicable) unless there is also a review of that decision pending.  It was conceded by the applicant at hearing that only the second nomination by his employer was under review by the Tribunal, not the first one made in connection with this subclass 186 visa application.

17. Therefore, the Tribunal finds that cl.186.223 is not met.

18. 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.

    DECISION

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

    Alison Mercer
    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.