Lokawidjaja (Migration)

[2023] AATA 914

Lokawidjaja (Migration) [2023] AATA 914 (4 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Antonius Suherman Lokawidjaja

CASE NUMBER:  2000547

HOME AFFAIRS REFERENCE(S):          BCC2018/5156721

MEMBER:Alison Mercer

DATE:4 April 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 4 April 2023 at 1:34pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination – decision under review affirmed

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

CASES
Patel v MHA [2019] FCA 1228
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 10 January 2020 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 November 2018. 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 (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 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 the Temporary Residence Transition stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations, which required that he was the subject of an approved nomination by his Australian employer, and that the nominated position was still available to him. The delegate found that the applicant had advised the Department that he had ceased employment with his employer, and thus could not meet this requirement.

6. The Tribunal received a review application from the applicant on 12 January 2020. It was accompanied by a copy of the delegate’s decision.

7. On 23 February 2023, the Tribunal wrote to the applicant to invite him to attend a hearing to be conducted by videoconference on 16 March 2023.

8. The Tribunal exercised its discretion to hold the hearing by videoconference. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant, who is resident in New South Wales, while the Presiding Member is based in Victoria. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference.

9. On 27 February 2023, the applicant requested a hearing postponement as he was on annual leave between 10 and 20 March 2023. The Tribunal agreed to do so and invited the applicant to a rescheduled videoconference hearing on 4 April 2023. The Tribunal requested that the applicant provide any additional material to support his case at least 1 week before the hearing. The rescheduled hearing invitation was sent to the email address nominated by the applicant.

10. The applicant did not appear before the Tribunal by videoconference on 4 April 2023. At the direction of the Presiding Member, a Tribunal officer rang the applicant 3 times between 10am (the scheduled commencement time for the hearing) and 10.15am but was unable to contact the applicant. The Tribunal notes that the applicant was also sent a reminder of the hearing by SMS to his nominated mobile phone number on 3 April 2023.

11. Under the circumstances – where the applicant has been notified of the hearing date via email and text to his nominated email address and phone number, but has not attended or provided a reason for his non-attendance, and where the criterion in dispute is simple - the Tribunal has elected to proceed to a decision on the available evidence, without taking further steps to offer another hearing to the applicant, as authorised by s.362B(1A) of the Act.

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

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

    Nomination of a position

13. 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.

14. 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 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.

15. The delegate’s decision (a copy of which was provided to the Tribunal by the applicant) indicated that the applicant was nominated for the subclass 186 visa as a Cook by his then employer, Alanas Holdings Pty Ltd (trading as C1 Café & Brasserie in Chatswood, NSW). The delegate’s decision further indicates that the Department wrote to the applicant on 12 December 2019 to advise that they had received information from the Centre Management at the Chatswood Chase shopping centre, where the employer was located, indicating that the business was no longer operating and had not done so since approximately June 2019. The delegate further noted that the applicant responded to this letter by confirming that the business had ceased trading and that the nominated position was no longer available to him.

16. The Tribunal finds that there is no approved nomination of the applicant by his originally nominating employer, Alanas Holdings Pty Ltd, and thus he does not meet cl.186.223(2) and cannot meet cl.186.223 as a whole.

17. The Tribunal notes that even if the applicant were able to secure another nomination with a new Australian employer, this would not satisfy cl.186.223.

18. This is because it is a requirement for both the Temporary Residence Transition and Direct Entry streams (cls 186.223 and 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] This was the view taken in Singh v MIBP [2017] FCAFC 105 (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.[3] Although the Court’s comments were strictly obiter, they are nonetheless persuasive in relation to subclass 187 visas and were applied in Patel v MHA [2019] FCA 1228 where the Court held that there was no argument for a substitution of employer or position for the purposes of satisfying cl 187.233.[4] As the relevant subclass 186 criteria are in the same terms, the Court’s reasoning also appears applicable to cls 186.223 and 186.233. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl 186.223 or 186.233 (as applicable) unless there is also a review of that decision pending.  

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

    [2] Singh v MIBP [2017] FCAFC 105 at [88]..

    [3] See Kaur v MIBP [2017] FCCA 564 which also considered whether the applicant could meet cl 187.233 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 sch 1 declaration was made. Singh v MIBP [2016] FCCA 2229 also concerned the equivalent requirements in cl 187.233. 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, 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.

    [4] In Patel v MHA [2019] FCA 1228, the appellant had sought an adjournment to find a new employer to nominate a position for his visa application. The Court applied the obiter comment in Singh and found that there was no argument available for the purpose of satisfying cl 187.233 that there might be some form of substitution of employer or position (at [7]–[8]).

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.

    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:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.