Maekawa (Migration)

[2021] AATA 2682

Maekawa (Migration) [2021] AATA 2682 (2 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shinji Maekawa
Mrs Naoko Maekawa
Master Eita Maekawa
Master Kota Maekawa

CASE NUMBER:  1821760

HOME AFFAIRS REFERENCE(S):          BCC2016/2438009

MEMBER:K. Chapman

DATE:2 July 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 02 July 2021 at 4:38pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – position of Marketing Specialist – no approved nomination – financial position of the nominator – actively operating a business in Australia – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 186.233; r 1.13

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 19 July 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’). At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

2. 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.

3. The first named applicant, Mr Shinji Maekawa (hereafter ‘the applicant’), applied for the Subclass 186 visa on 22 July 2016. He is seeking the visa in the Direct Entry stream, to work in the nominated position of Marketing Specialist (ANZSCO Code 225113). That position was nominated by Prudent Property Management Pty Ltd (‘the nominator’). The second, third and fourth named applicants are secondary visa applicants.

4. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations, because he was not the subject of an approved nomination as required. On 27 July 2018, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s visa refusal decision was provided with the application for review.

5. On 24 May 2021, pursuant to the procedure in s.359A of the Act, the Tribunal raised the following information with the applicant:

   ·The application for approval of the nominated position made by Prudent Property Management Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but it was recently affirmed by the Tribunal (see AAT matter 1818789). This means that the nominator’s application for the nominated position has not been approved.

6. The Tribunal’s correspondence advised that the above information is relevant to the review, as it tends to suggest that there is not an approved nomination of the applicant in relation to his visa application. This correspondence also indicated that if the Tribunal relies upon this information, then it may affirm the decision under review.

7. The due date for response to the invitation pursuant to s.359A of the Act was 7 June 2021. On that day, the applicant submitted a statement to the Tribunal conceding there is not an approved nomination in relation to the visa application, nor is there any other pending nomination. The Tribunal has carefully considered this response to its invitation.

8. The applicant appeared by telephone before the Tribunal on 9 June 2021 to give evidence and present arguments (having earlier been granted a postponement of the originally scheduled review hearing). He confirmed that he was comfortable participating in the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages. The applicant confirmed he understood the interpreting service.

9. During the review hearing, the applicant advised that he was working full time as a Marketing Specialist for the nominator. The Tribunal invited the applicant to provide further information in relation to the invitation pursuant to s.359A of the Act, if he wished to do so. The applicant informed the Tribunal that he was not represented properly by his previous representative (including not being informed of the due date for response to a s.359(2) invitation in the associated review application lodged by the nominator) and he advised that the future turnover of the nominator was not considered in the decision to refuse the application for nomination. He asked that the Tribunal consider the future turnover of the nominator after he was granted Australian permanent residence. The applicant also advised that he and his family wish to reside in Australia. The Tribunal has carefully considered the evidence provided by the applicant at the review hearing.

10. Additionally, on 9 June 2021, the Tribunal received post hearing submissions which, inter alia, requested a reconsideration of the nominator’s application for review, as it lost its right to hearing by operation of law. The Tribunal has carefully considered this material.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant satisfies cl.186.233.

    Nomination of a position

13. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. 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.

14. In addition, this criterion also requires that:

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

15. On balance, the Tribunal will not reconsider the nominator’s separate review application, as requested by the applicant, for the following reasons. The nominator lost its right to hearing by operation of law and the Tribunal has no power to permit it to attend a hearing, as canvassed with the applicant during his review hearing. Further, the Tribunal granted extra time for the nominator to provide written material in support of its application for review. Additionally, the Tribunal does not accept that by considering the financial position of the nominator, at the time of decision, in its associated review application any error arises as suggested by the applicant.

16. The Tribunal notes that it developed concerns with the alleged conduct of the applicant’s former representative, Mr Koshi Ozawa, in connection with the nominator’s application for review. However, given the extra time provided for written material in that review, the Tribunal is satisfied that the nominator had a reasonable opportunity to present its case. It is a matter for the applicant if he wishes to consider engaging with a relevant regulatory body with respect to the former representative.

17. Furthermore, it is also worth pausing to reflect that in the applicant’s submissions of 9 June 2021, he concedes that “all the income and assets are situated in Japan” with respect to the nominator. Whilst the Tribunal accepts that the COVID-19 pandemic caused some difficulties for the nominator as outlined in the applicant’s submissions, in its view, the offshore concentration of income and assets is not commensurate with the nominator actively operating a business in Australia in order to successfully nominate the applicant for a permanent Subclass 186 visa. Accordingly, the Tribunal is satisfied that the nominator’s application for review has properly been finally determined.

18. The Tribunal records that the nomination of the applicant for the position of Marketing Specialist (ANZSCO Code 225113) by the nominator has not been approved (see AAT matter 1818789). Following careful consideration, the Tribunal finds that at the time of its decision there is no evidence of an approved nomination of a position relating to the applicant. Accordingly, the requirements of cl.186.233 are not met.

19. The applicant has only sought to satisfy the criteria for a Subclass 186 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.

20. It follows that the second, third and fourth named applicants also do not meet the criteria for the grant of the Subclass 186 visa.

    DECISION

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

    K. Chapman
    Member

    
    

    ATTACHMENT A

    186.233(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)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)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 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 the 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 not more than 6 months after the Minister approved the nomination.