Leggatt (Migration)

[2021] AATA 3930

Leggatt (Migration) [2021] AATA 3930 (3 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Paul Leggatt

CASE NUMBER:  1811505

HOME AFFAIRS REFERENCE(S):          BCC2016/4257234

MEMBER:Michelle East

DATE:3 August 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 03 August 2021 at 12:28pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Sales and Marketing Manager – skills and qualification – subject of an approved nomination – email not a response to the 359A invitation – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.234

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 December 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position Sales and Marketing Manager (ANZSCO 131112).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.234 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant was in a class of persons specified by the Minister in an instrument, the applicant did not provide any evidence that his skills had been assessed as suitable for the occupation by an assessing authority and the applicant did not provide evidence he held the qualifications listed in ANZSCO as being necessary to perform the tasks of his nominated occupation.

6. On 23 June 2021, the Tribunal wrote to the applicant pursuant to s 359A of the Act inviting his response to the following information:

   The application for approval of the nominated position made by IRP PTY LTD (the nominator) was refused by a delegate of the Minister for Home Affairs.  The nominator sought a review of that decision but they have now withdrawn that application for review.  This means that the nominator’s application for the nominated position has not been approved.

   This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.

   If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination.  This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.

7. A response was requested by 7 July 2021.

8. The applicant was represented in relation to the review by his registered migration agent.

9. On 4 July 2021, the applicant responded as follows:

   Thanks so much for the email below and the attachment, I have been stuck on site due to COVID and have only just returned to this email/notice.

   I have passed this onto my solicitor to complete and will have the form back to you this week.

10. No further response was received from the applicant and/or his representative.

11. In these circumstances, the Tribunal finds that the email of 4 July 2021 is not a response to the 359A invitation as it does not address the information put to the applicant in the Tribunal’s letter dated 23 June 2021.

12. The applicant has not provided the information within the prescribed period or requested an extension of time to do so.  In these circumstances s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if the review applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40.

13. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support his review application.

14. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where similar issues were discussed.

15. The Tribunal has considered whether, in the circumstances of this case, the evidence that the applicant meets the requirements of the legislation is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

16. On 19 July 2021 the Tribunal wrote to the applicant’s representative again, enclosing a copy of a Certificate issued pursuant to s 375A of the Act and inviting comments as to its validity.  A response was requested by 2 August 2021.  A search of the Tribunal’s records demonstrated that no response was received by that date.

17. In these circumstances and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria.  The Tribunal is not disposed to delay making a decision indefinitely.

18. Accordingly, the Tribunal has decided not to exercise its discretion to adjourn the review any further to allow the applicant more time.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether the applicant is the subject of a valid and approved nomination.

    Section 375A Certificate

21. The Tribunal was provided with a section 375A Certificate dated 9 May 2018.  The Tribunal was of the preliminary view that the certificate was invalid as it wasn’t signed.[1]  A request was made to the Department to re-issue the Certificate.

    [1] El Jejieh v MHA (No 2) [2019] FCCA 840 at [23] – [25]

22. The Tribunal was provided with a new section 375A Certificate dated 14 July 2021 which prohibited disclosure of the Departmental ICSE records on the basis that disclosure would be contrary to the public interest because:

    It would: disclose lawful methods for preventing, detecting or investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods and may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.

23. They relate to non-disclosure of COI (Client of Interest Notes) about the visa applicant.  The COI notes relate to discussion with or information provided by a law enforcement agency.

24. After carefully considering the information which is the subject of the Certificate the Tribunal has concluded that the content has no relevance to its decision and the Tribunal has placed no weight on the information in making its decision.

    Nomination of a position

25. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

26. In addition, this criterion also requires that:

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

    ·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.

27. Based on the evidence before it, the Tribunal is not satisfied that at the time of its decision that there is an approved nomination.  Therefore, cl.187.233(3) is not met.

28. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

    The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visa.

    Michelle East
    Member

    
    

    ATTACHMENT A

    187.233(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:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(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

    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 no more than 6 months after the Minister approved the nomination.