KERIVAN (Migration)

[2018] AATA 4286

KERIVAN (Migration) [2018] AATA 4286 (27 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Evan KERIVAN

CASE NUMBER:  1702314

HOME AFFAIRS REFERENCE(S):           BCC2016/1505114

MEMBER:R. Skaros

DATE:27 September 2018

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 27 September 2018 at 9:33am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – subject of an approved nomination – relevant nomination refused – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360, 363A
Migration Regulations 1994 (Cth), 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 30 January 2017 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 20 April 2016. 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 Accommodation and Hospitality Manager with Golden Age Cinema & Bar Pty Ltd.

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

6. The applicant applied for review of the delegate’s decision and a copy of the decision record was provided to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Nomination of a position

9. 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.

10. The applicant applied for the visa on the basis of an employer nomination lodged by Golden Age Cinema & Bar 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).

11. The nomination referred to above was refused by the Department on 4 January 2017. Golden Age Cinema & Bar Pty Ltd applied for review of the delegate’s decision not to approve the nomination. On 20 August 2018, the Tribunal affirmed the Department’s decision not to approve the relevant nomination.

12. On 27 August 2018 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting him 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 affirming the Department’s decision to refuse the nomination made by Golden Age Cinema & Bar Pty Ltd, which the Tribunal explained is relevant to the requirement in cl.186.223(2) which requires the relevant nomination to be approved.

13. The invitation was sent to the applicant at the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 10 September 2018 the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

14. The review applicant did not provide 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.

15. On 14 September 2018 the Tribunal received correspondence from the applicant’s newly appointed representative advising that she has been appointed by the applicant in relation to his application for review before the Tribunal. The representative enquired as to whether there is anything further required by the Tribunal.

16. On 17 September 2018, the Tribunal sent an email to the representative informing her that on 27 August 2018 the Tribunal sent an invitation to the review applicant and that the applicant was required to respond 10 September 2018. A courtesy copy of the invitation to comment was attached to the email. The representative was advised that as a response was not received by the prescribed period, the review applicant had lost his right to a hearing. The Tribunal noted that it would nevertheless delay making a decision on the review until 21 September 2018 and that the applicant had until that day to provide any information he would like the Tribunal to consider.

17. To date, the Tribunal has not received any response from the applicant or the representative. The Tribunal notes, the issue in this case is whether the associated nomination has been approved. The evidence before the Tribunal, of which the applicant was informed, is that the refusal of the nomination was affirmed on review. In the circumstances, there is little merit in delaying the making of this decision any further as no amount of delay will assist the applicant in this case.

18. 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.

19. 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

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

    R. Skaros
    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.