Mcdonagh (Migration)

[2021] AATA 5471

Mcdonagh (Migration) [2021] AATA 5471 (25 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aidan McDonagh

CASE NUMBER:  1813568

HOME AFFAIRS REFERENCE(S):          BCC2017/4659596

MEMBER:Karen McNamara

DATE:25 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 25 June 2021 at 10:31am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – welder – position nomination refused and application for review withdrawn – hearing scheduled despite no response to tribunal’s invitation to comment – applicant left former employment for health and safety reasons – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223(2)

CASE
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 19 April 2018 to refuse to grant Mr Aidan McDonagh (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 7 December 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 (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 Welder (First Class) (ANZSCO 322313).

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because on 17 March 2018 the nomination lodged by NKR Services Pty Ltd ATF NKR Services Trust, was refused by a delegate of the Minister for Home Affairs.

6. The applicant lodged a review application with the Tribunal on 10 May 2018 and provided the Tribunal with a copy of the delegate’s decision to refuse the visa.

7. On 17 May 2021, the Tribunal invited the applicant under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 15 June 2021 at 9:00am (WA time) 11:00am (NSW time).

8. On 18 May 2021, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to his comments or response, be the reason or part of the reason for affirming the decision under review. 

9. The information related to information before the Tribunal that suggests there is no approved nomination because the nominator NKR Services Pty Ltd ATF NKR Services Trust withdrew their nomination review application on 11 August 2020, which was accepted by the Tribunal on 18 August 2020 and for this reason the original decision made by the delegate from the Department of Home Affairs is unchanged.

10. The Tribunal explained in its letter of 18 May 2021, that this information is relevant because under r.186.223(2), the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister. The Tribunal may therefore find that the applicant does not meet the requirements for approval of the visa application and the decision under review may be affirmed.

11. The Tribunal’s letter of 18 May 2021 additionally stated the following;

    ‘ The nomination relied on to satisfy cl.186.223 must be the one that was made at the

    time of the visa application – it is not possible to rely on another nomination.

    If the Tribunal relies on this information, it may find that the nomination in relation to
    you has not been approved and consequently the decision under review would be
    affirmed. You must have a related nomination to be able to be granted the visa.

    You are invited to give comments on or respond to the above information in writing.
    Your comments or response should be received by 1 June 2021. If the comments or
    response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 1 June 2021, you may
    ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 1 June 2021 and you must state
    the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    An invitation to attend a scheduled hearing was sent to you on 17 May 2021.
    Please note, however, that if you do not respond to this letter within the date
    specified or within any extended timeframe, you will lose your right to attend the
    scheduled hearing and it will be cancelled. The Tribunal will proceed to make a
    decision on the review without taking any further action to obtain your views on
    the information.’

12. This invitation was sent to the last address provided in connection with the review and advised as stated above, if the comments or response were not provided in writing by 1 June 2021, the Tribunal may make a decision on the review without taking further steps to obtain the applicants comments and the review applicants would lose any entitlement they may otherwise have had under the Act.

13. On 24 May 2021, the applicant responded to the Tribunal’s invitation of 17 May 2021 to appear before it. The Tribunal notes that the response to attend the hearing did not address the issues raised in the Tribunal’s invitation to comment dated 18 May 2021.

14. The review applicant did not provide the comments within the prescribed period and no extension was sought or 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.

15. The Tribunal has considered whether this was an appropriate case for it to adjourn the review under s.363(1)(b) of the Act, to allow the applicant additional time in which to provide evidence to support the review application. In this regard the Tribunal considered whether, in the circumstances of this case, evidence that the applicant meets the requirements of cl.186 of the Regulations 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. The Tribunal noted that the applicant accepted the Tribunal’s invitation to appear before it to give evidence and present arguments at a hearing on 15 June 2021 at 9:00am (WA time) 11:00am (NSW time).

17. The Tribunal determined that whilst the applicant was not entitled to a hearing, the Tribunal would afford the applicant the opportunity to appear before it to give evidence and present arguments at the scheduled hearing on 15 June 2021.

18. Mr Aidan McDonagh appeared before the Tribunal via telephone on 15 June 2021 to give evidence and present arguments. The applicant was not represented in relation to the review by a registered migration agent. 

19. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in the present case is whether the applicant meets the requirements of cl.186.223 of Schedule 2 to the Regulations.

    Nomination of a position

22. 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.

23. 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.

24. At the hearing of 15 June 2021, the Tribunal explained that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration regulations are satisfied. In order to meet cl.186.223, the applicant must be subject of an approved nomination.

25. Mr McDonagh told the Tribunal that the original paperwork had not been done properly and that he had left his former employment due to health and safety reasons. The Tribunal acknowledged the applicant’s situation and has empathy for his circumstances however, the Tribunal must apply the legislation as it stands. As explained to the applicant during the hearing, the Tribunal has no discretion in this matter and must apply the relevant law. 

26. Having considered the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl 186.223(2) of Schedule 2 to the Regulations.

27. As the applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 of Schedule 2 to the Regulations is not met.

28. 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

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

    Karen McNamara
    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.