Mora Jurado (Migration)

Mora Jurado (Migration) [2020] AATA 409 (13 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Juan Manuel Mora Jurado
Mr Wen Hui Chen

CASE NUMBER:  1720440
HOME AFFAIRS REFERENCE(S):          BCC2017/339107
MEMBER:Amanda Mendes Da Costa
DATE:13 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the first named applicant an Employer Nomination (Permanent) (Class EN) visa
The Tribunal has no jurisdiction in respect of the second named applicant.

Statement made on 13 February 2020 at 10:57am
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – employer’s position nomination refused – refusal confirmed on review – no response to tribunal’s s 359A letter – second applicant’s application for review withdrawn – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223
CASE
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Department) on 17 August 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 25 January 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
In the present case, the first named applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager ANZSCO 149212.
The delegate refused to grant the visa because the first named applicant did not meet cl.186.223 because the applicant was not the subject of an approved nomination.
The applicants were represented in relation to the review by their registered migration agent.
The second named applicant has provided the Tribunal with a Notice of Withdrawal of his review application dated 14 August 2019, which the Tribunal has accepted.
On 28 January 2020 the Tribunal wrote to the first named applicant pursuant to s.359A of the Act, inviting him to comment on or respond in writing to information that it considered would be part of the reason for affirming the decision under review. That information was as follows:
·     The Allen Family Trust lodged an application for approval of a nomination on 25 January 2017, identifying the first named applicant as the nominee for the occupation of Customer Service Manager ANZSCO 149212.
·     On 10 July 2017 a delegate of the Minister of the Department of Immigration and Border Protection made a decision refusing the sponsor’s nomination application. The Allen Family Trust subsequently made an application for review of the primary decision.
·     On 6 January 2020 the Tribunal made a decision affirming the decision of the delegate to refuse the nomination application.
The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 11 February 2020, the first named applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The first named applicant has not provided the comments or response within the prescribed period and no extension has been either sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the first named applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments or response.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed in relation to the first named applicant and that it has no jurisdiction in respect of the second named applicant.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the first named applicant is the subject of an approved nomination.
Nomination of a position
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.
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 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.
The Allen Family Trust lodged an application for approval of a nomination on 25 January 2017, identifying the first named applicant as the nominee for the occupation of Customer Service Manager ANZSCO 149212.
On 10 July 2017 a delegate of the Department made a decision refusing the sponsor’s nomination application. The Allen Family Trust subsequently made an application for review of the primary decision.
On 6 January 2020 the Tribunal made a decision affirming the delegate’s decision to refuse the nomination application.
On the basis of the above evidence, the Tribunal finds that the first named applicant does not have an approved nomination (for an occupation), which has not subsequently been withdrawn.
Therefore, cl.186.223 is not met.
The first named 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.
As he has withdrawn his application for review, the Tribunal finds it has no jurisdiction in respect of the second named applicant.
DECISION
The Tribunal affirms the decision not to grant the first named applicant an Employer Nomination (Permanent) (Class EN) visa.
The Tribunal has no jurisdiction in respect of the second named applicant.
Amanda Mendes Da Costa
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.

[2020] AATA 409

13 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction