Mengi (Migration)

[2019] AATA 5329

Mengi (Migration) [2019] AATA 5329 (8 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nitin Mengi
Mrs Harmandeep Kaur
Miss Harniti Mengi

Master Nyrick Mengi

CASE NUMBER:  1817299

HOME AFFAIRS REFERENCE(S):          BCC2017/2852902

MEMBER:K. Chapman

DATE:8 August 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 08 August 2019 at 1:54pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – approved nomination – nomination withdrawn – no adjournment requested – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 187.233(3)

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied for the visas on 9 August 2017. The first named applicant, Mr Nitin Mengi, included his wife and one child in the visa application and they have subsequently had a second child who is included in the review application. At the time of the visa 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 (‘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 first named applicant (hereafter ‘the applicant’), is seeking the visa in Direct Entry stream, to work in the nominated position of Finance Manager.

5. The delegate refused to grant the visa on 30 May 2018 because, in their view, the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations as the associated nomination application lodged by the Australian Stocks and Financial Services Trading Trust was withdrawn by the nominator on 23 March 2018. The delegate also noted that on 29 March 2018, the Department wrote to the applicant with a ‘natural justice letter’ regarding the nomination withdrawal and provided him with 28 days to respond. He failed to do so.

6. On 13 June 2018, the applicant applied to the Tribunal for review of the Subclass 187 visa refusal decision, providing a copy of that decision with his application for review. The applicant also submitted to the Tribunal material including educational records, a birth certificate, an English language test result and a PAYG Payment Summary. The aforementioned material has been duly considered by the Tribunal. 

7. On 17 December 2018, the Tribunal wrote to the applicant outlining that the associated nomination application was not approved and there was no evidence to suggest that this nomination application was subject to an application for review. The Tribunal drew to the applicant’s attention that if the aforementioned circumstances existed, then his application for review was unlikely to be successful and lodging a new nomination application would not enable him to satisfy the criteria for the visa. The Tribunal invited the applicant to provide information concerning whether the position identified in his visa application was the subject of an approved nomination or a pending application for review. He failed to do so.

8. On 12 June 2019, the Tribunal wrote to the applicant inviting him to attend a review hearing scheduled for 10am on Wednesday 7 August 2019. The Hearing Invitation clearly advised that if an adjournment was not granted then the review hearing will proceed and that if the applicant failed to attend the scheduled review hearing the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it. The Hearing Invitation also requested the applicant to submit a ‘Response to Hearing Invitation’ outlining matters such as any witnesses or interpreting services required. He failed to do so.

9. On 31 July 2019 and 6 August 2019, the Tribunal sent automated messages by short message service (SMS) to the mobile telephone number of the applicant listed in the application for review. These messages reminded the applicant of the scheduled review hearing. No automated error message was received by the Tribunal in relation to these messages.

10. The applicant failed to attend the review hearing scheduled on 7 August 2019. No request for adjournment was made by him and no explanation for his non-attendance has been submitted. The applicant has not had the courtesy to make contact with the Tribunal following his non-attendance on 7 August 2019.  

11. The Tribunal is satisfied that the applicant was notified of the scheduled review hearing pursuant to the statutory requirements. The Tribunal notes that the applicant did not have the courtesy to respond to the Tribunal’s correspondence of 17 December 2018 or 12 June 2019 and that he was also provided SMS reminders of the scheduled review hearing. On balance, the Tribunal is satisfied that the applicant has been provided with a fair opportunity to attend a review hearing if he wished to do so.

12. The Tribunal has also considered the merits of the application for review in the present matter. It is apparent on the evidence before the Tribunal that the applicant does not have an approved nomination as is required for the grant of a Subclass 187 visa. Accordingly, the Tribunal forms the view that the application for review has no prospects of success.

13. The Tribunal has paid careful regard to the guidance in the decisions of 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 held that the Tribunal is not required to indefinitely defer its decision-making processes. The Tribunal 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. The Tribunal has accordingly carefully considered all of the circumstances pertaining to the present application for review in considering whether to grant an adjournment.

14. Given the lack of prospects of success of the application for review, the applicant’s history of discourteously failing to respond to Departmental and Tribunal correspondence, and his lack of explanation for not attending the scheduled review hearing, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. Accordingly, the Tribunal has determined to make its decision on the review without taking any further steps to enable the applicant to appear before it pursuant to s.362B of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

    Nomination of a position

17. 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.

18. 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 r.1.13A and r.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.

19. As reflected in the delegate’s visa refusal decision, a copy of which was submitted by the applicant to the Tribunal, the application for nomination pertaining to the applicant was withdrawn by the nominator on 23 March 2018. There is no evidence before the Tribunal to suggest that the applicant is the subject of an approved nomination.

20. Following careful consideration, the Tribunal finds that at the time of its decision there is no evidence of an approved nomination relating to the applicant. Accordingly, the requirements of cl.187.233(3) are not met. It follows that cl.187.233 is not satisfied by the applicant.

21. 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.

22. Given that the applicant has not met the requirements for the grant of a Subclass 187 visa, and is not the holder of a Subclass 187 visa, it follows that the second, third and fourth named applicants do not satisfy the requirements of cl.187.311. The Tribunal so finds.

    DECISION

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

    K. Chapman
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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 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 no more than 6 months after the Minister approved the nomination.