Kusafuka (Migration)

[2021] AATA 5581

Kusafuka (Migration) [2021] AATA 5581 (5 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shunichi Kusafuka
Mrs Manami Kusafuka
Miss Yuri Kusafuka
Miss Yumeka Kusafuka
Mr Kaisei Kusafuka
Mr Sora Kusafuka

CASE NUMBER:  1801228

HOME AFFAIRS REFERENCE(S):          BCC2017/1759058

MEMBER:Ian Berry

DATE:5 February 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 05 February 2021 at 9:16am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Corporate General Manager – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 Home Affairs on 11 January 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 17 May 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. The applicant appeared before the Tribunal on 5 May 2020 to give evidence and present arguments. The Tribunal received oral evidence from the first named applicant.  The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.

5. 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 Corporate General Manager ANZSCO 111211.

6. The delegate refused to grant the visas because the applicant did not meet cl.186. 223(2) of Schedule 2 to the Regulations because the applicant did not have an approved nomination.

7. The applicants were represented in relation to the review by their registered migration agent Mr H  Zandi MARN 1279378. 

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 has an approved nomination which has not been withdrawn.

   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. After the hearing of the applicant’s nominator’s application on 5 May 2020, on 18 January 2021, the Tribunal found that the delegate’s decision made on 27 November 2017 be affirmed.

13. Therefore, cl.186.223 is not met.

14. As a result of the Tribunal affirming the delegate’s decision, it invited the applicant to respond or comment to information. ,On 21 January 2021, the Tribunal wrote to the applicant’s pursuant to s.359A of the Act, inviting the applicants to provide information about the following in writing:

    ‘ The particulars of the information are:

    •On 17 May 2017, you lodged an application for an Employer Nomination (Permanent) (Subclass 186) visa with the Department of Home Affairs (then called the Department of Immigration and Border Protection) (the Department).

    •On 27 November 2017, the nominator, AIC Support Pty Ltd, had their nomination application (nomination) refused by the Department. The nominator lodged an application for review of this decision with the Tribunal on 12 December 2017.

    •On 18 January 2021, the Tribunal affirmed the Department’s decision to refuse the nomination.

    This information is relevant to the review because if the primary applicant cannot satisfy the criteria in cl. 186.223 then the Visa application cannot be granted.

    If we rely on this information in making our decision, we may affirm the decision made by the Department.’ 

15. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 4 February 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant’s would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

16. The applicants did not provide any comments or information within the prescribed period and no extension has been granted.  However, the applicant’s representative did provide information, though not relevant to the Tribunal’s invitation, stating that the applicant’s intended to appeal the nomination decision.

17. In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40. Therefore, The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

18. The applicants have 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.

19. In respect of the second, third, fourth, fifth and sixth named applicants (the secondary applicants), the Tribunal notes there is no information before it to suggest that secondary applicants meet the primary criteria for the grant of the visa.  The secondary applicants applied for the visa because they were members of the family unit of the applicant.  As the Tribunal has found that the applicant does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of secondary applicants, as they were members of the family unit of a person who did not satisfy the primary criteria for the visa.

    DECISION

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

    Ian Berry
    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.