Na Nakorn (Migration)

[2019] AATA 1965

Na Nakorn (Migration) [2019] AATA 1965 (20 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vissarut Na Nakorn

CASE NUMBER:  1815387

HOME AFFAIRS REFERENCE(S):           BCC2017/1411246

MEMBER:Jennifer Cripps Watts

DATE:20 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 February 2019 at 11:22am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent)(Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – applicant not subject of  approved nomination – applied for review – did not attend – new nomination – applicant not provided evidence – no information provided to Tribunal – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 186.223, rr 1.13A, 1.13B, 5.19(4)

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 (the delegate) on 10 May 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 April 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 (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 Temporary Residence Transition stream, where he is identified to work in a nominated position for Dovappell Pty Limited (Dovappell).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination relating to the applicant’s Subclass 186 visa application was refused and the applicant was not therefore the subject of an approved nomination. Tribunal records indicate the nominating company did not apply for Tribunal review relating to this matter.

6. On 26 May 2018 the applicant applied for Tribunal review, within time, and provided a copy of the delegate’s decision with their review application.  They provided their representative’s details in the review application.  At the time it was Mr Andrew Woo and continues, at the time of this decision, to be the same migration agent. 

7. On 6 December 2018, the Tribunal sent the applicant, through Mr Woo, a ‘request for information’.  In the letter, this was included:

   ‘It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.

   Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.

   If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide evidence about this by 20 December 2018.’

8. No response was received to the 6 December 2018 letter and the Tribunal invited the applicant to attend a hearing to give oral evidence.  The applicant did not provide a reason why he did not respond to the letter or why no information was provided up to that time.

9. On 18 January 2019, the Tribunal sent an invitation in writing to the applicant to attend a scheduled hearing on 19 February 2019.  He was invited to provide any additional documents he would like considered. 

10. On 22 January 2019, Mr Woo requested a hearing postponement because he was going on holiday to Vietnam from 15 to 25 February 2019.  It is accepted he was going on holiday.  The request was considered and he was told that it is not necessary for him to attend in person, but that he could provide written submissions prior to the hearing and attend by phone if he wished to.  By way of response, in an email received on 14 February 2019, Mr Woo again requested a postponement for two months,  and provided written submissions to support the request for postponement.  In the email Mr Woo confirmed that the applicant ‘will not attend the hearing in person.’  The basis of the second postponement request was, essentially, that the nominating company has lodged a new nomination application in respect of the applicant in this matter and he wanted the Tribunal to wait until the Department makes a decision on the second nomination application before the Tribunal makes a decision in this matter. 

11. A response to the second postponement request was sent to the applicant on 15 February 2019 informing him that the request was not granted and providing reasons.  Taking into account that the Tribunal had been advised by the applicant’s migration agent that the applicant did not intend to come to the scheduled hearing, the Tribunal has made a decision on the evidence before it.

12. Correspondence has been sent by the Tribunal to the applicant’s authorised representative, Mr Andrew Woo, Migration Agent Registration Number 1383628, who is also a solicitor working at Taylor and Scott Lawyers.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is, essentially, whether the position identifying the applicant is the subject of a nomination or pending nomination, identifying the applicant and position.

15. The applicant has been provided with opportunities to provide evidence that they satisfy the criteria for the grant of the visa and have not provided any relevant evidence that satisfies the Tribunal that they have a nomination or that a nomination review application is pending, relating to the visa application that is the subject of this review.  Their migration agent, Mr Woo, was invited to provide written submissions prior to the hearing, as he had indicated he wouldn’t be able to attend the hearing in person.

16. Written submissions were received on 14 February 2019 and have been considered.  They include the following information:

    a.The nomination application and linked visa application (that is the subject of this review) were lodged on 18 April 2017.

    b.The nomination was refused on 20 March 2018

    c.On 20 March 2018, a natural justice letter was received by the visa applicant inviting him to comment on the nomination refusal relating to his visa application.

    d.On 23 March 2018 a new nomination application and linked visa application were lodged.

    e.Not long after the nomination was refused, it was realised the wrong position or occupation had been included in the application and Mr Woo sent a Form 1023 (notification of incorrect answer) to the Department.

    f.On 27 March 2018 sought an amendment to the nominated occupation and, on 10 May 2018, they were notified that the amendment request had been refused and notification was received that the visa had been refused.

    g.On 26 May 2018, the applicant applied for review of the decision to refuse his visa.

    h.On 13 February 2019, a request was received for additional information in relation to the (second) nomination application submitted on 23 March 2018 (which the Tribunal takes to mean a request from the Department, not the Tribunal, as such a request was not made by the Tribunal).

17. Documents were attached to the email, including:

    a.Notification of refusal of a nomination application dated 20 March 2018;

    b.The Form 1023 referred to;

    c.Fresh nomination application form submitted on 23 March 2018 and acknowledgement of receipt;

    d.Correspondence between Mr Woo and the Department;

    e.The Department’s request for further information dated 13 February 2019.

18. In the submissions, it is acknowledged by Mr Woo that the Tribunal ‘may be of the view even if Mr Na Nakorn’s fresh application were to be approved, there is no linked nomination application before the Tribunal.’  He provided an earlier Tribunal decision from 2014 for consideration.  It refers to a set of circumstances that relate to a nomination that was lodged prior to 1 July 2012 and that was not approved under the provisions of r.5.19(3), but which do apply in the current matter.   The Tribunal acknowledges the earlier decision but is of the view that it is not relevant.  In any event, it is not bound by earlier Tribunal decisions. 

19. Mr Woo requested that the Tribunal allow ‘additional time for the fresh nomination application to run its course first and make a final decision on the technical point i.e. whether it is possible to amend the nomination following the lodgement of the visa application and if so whether the linked nomination applicant must be approved.’  Here, he seems to be suggesting that the Tribunal may review a Departmental process (advising of incorrect information in the application) relating to the nomination application, after the nomination has been refused and where there is no nomination review relating to that refusal before the Tribunal. 

20. The Tribunal has considered the request for a two month postponement of its decision on the above basis and is of the view that any decision about the second nomination is not relevant to the case before the Tribunal as the second nomination does not relate to the nominated position in the applicant’s visa application that is the subject of this review.

21. The Tribunal has had regard to the evidence before it, including relevant matters contained in the delegate’s decision.

    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 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.

24. The applicant has simply not provided any information to the Tribunal that the position identified in his visa application is the subject of an approved nomination, or that there is a pending review application for a review of a decision to refuse the nomination.  Lodging a new nomination application will not enable him to meet the criteria for the visa.  The applicant elected not to attend the scheduled Tribunal hearing to give oral evidence.  On the evidence and in this applicant’s circumstances, even if the Tribunal waited for two months, the applicant still has not provided the Tribunal with evidence that satisfies the Tribunal that he does or will be able to meet the criteria for the grant of the visa. 

25. 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

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

    Jennifer Cripps Watts
    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.