Li (Migration)

[2019] AATA 3397

Li (Migration) [2019] AATA 3397 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mengran Li

CASE NUMBER:  1813150

DIBP REFERENCE(S):  BCC2017/2278974

MEMBER:Ian Berry

DATE:5 July 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to not to grant the applicant’s Employer Nomination (Permanent) (Class EN) visa.

Statement made on 05 July 2019 at 12:41pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – nomination refused – review application made out of time – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 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 on 16 April 2018 to refuse to grant the visa applicant a Employer Nomination (Permanent) Subclass 186 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 27 June 2017. The delegate refused to grant the visa on the basis that the applicant’s nominator The Trustee for BWZ Consulting Family Trust (the Nominator) had its nomination application refused on 12 March 2018. Therefore, the applicant could not satisfy cl.186.223(2).

3. The applicant was represented in relation to the review by her registered migration agent. The applicant provided to the Tribunal a copy of the delegate’s decision and reasons made on 16 April 2018.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant has an approved nomination or a nomination is pending but not approved.

6. On 12 March 2018, the Minister’s delegate made a decision refusing  the Nominator’s nomination application which had identified the applicant in respect of the nominated occupation.

7. On 11 April 2018, the Department advised the applicant by email that the Nominator’s application had been refused. It appeared from the delegate’s decision that the Departmental email went to the applicant’s junk mail folder. However the email address to which the email was sent was the official address provided by the applicant, to the Department.

8. On 11 May 2018, the Tribunal communicated with the applicant advising of matters needing to be attended to administratively. That email was not returned or otherwise advice received that it did not reach the applicant.

9. On 11 December 2018, to the same email address, the Tribunal emailed the applicant advising that information before the Tribunal suggested that the position, to which the applicant was the visa applicant, had been refused. Further, the Tribunal advised the applicant that there was no pending review of that refusal decision. The tribunal letter requested a response from the applicant by 2 January 2019, inviting the applicant to request an extension to make such application before 2 January 2019.

10. On 13 March 2019, the applicant appointed a new migration agent, with the applicant advising of such appointment in Form 956.

11. On 20 June 2019, the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the applicant to provide information, in writing, about the Tribunal indicating that the applicant did not have an approved nomination. The application for approval of a business nomination made by the Nominator was refused by the Department of home affairs on 12 March 2018 and that Tribunal records also indicates that the Nominator did apply for a review of the delegate’s decision but was made out of time, that is not made within the time permitted to make the review. Accordingly, the applicant did not have an approved nomination. The Tribunal advised the applicant that the information may be relevant to affirming the delegate’s decision under review as it indicates that the applicant did not meet the requirements of cl.186.223(2) of Schedule 2 to the Migration Regulations 1994.

12. The invitation was sent to the last address provided in connection with the review and advised that, if the information and or comments were not provided in writing by 4 July 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and/or comments and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

13. The review applicant has not provided the information and or 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 applicant is 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the information or comments.

    DECISION

14. The Tribunal affirms the decision under review to not to grant the applicant’s Employer Nomination (Permanent) (Class EN) visa.

    Ian Berry
    Member