Naidu (Migration)

[2019] AATA 5149

Naidu (Migration) [2019] AATA 5149 (15 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Reshmi Naidu

CASE NUMBER:  1728023

DIBP REFERENCE(S):  BCC2017/243745

MEMBER:Mary Sheargold

DATE:15 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal confirms the decision to dismiss the application.

Statement made on 15 November 2019 at 4:27pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – no appearance by applicant at hearing – application dismissed – application for reinstatement – employer’s failure to lodge documents in related nomination application not a ground for non-attendance – dismissal confirmed

LEGISLATION

Migration Act 1959 (Cth), s 362(1A)(b)

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 Immigration on 24 October 2017 to refuse to grant the visa applicant a  Employer Nomination (Permanent) Subclass 186 visa under the Migration Act 1958 (the Act).

2. On 1 November 2019, the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

3. The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.

4. The review applicant applied for reinstatement of the application within 14 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

5. At 5:35pm on 14 November 2019, the applicant’s nominating employer, who is also the authorised recipient in relation to this application, wrote to the Tribunal on the applicant’s behalf stating the reason for non attendance was: “it was out of our hands to provide the documents as requested and attend the tribunal [sic].” 

6. The applicant’s nominating employer also stated that its accountant was responsible for the lodgement of business activity statements (BAS) and taxation documents with the Australian Taxation Office.  The applicant stated that “[f]or some time, another entity with the same trust name was lodging the BAS and tax and only recently the Tax office [sic] has fixed that error and the Tax office has contact my tax agent to go ahead and start lodging the BAS and returns.” 

7. The applicant’s nominating employer provided a letter signed by its accountant, Mr Domenic Roperto, confirming the issue with the lodgement of documents with the ATO, and stating that “[d]ue to the workload in our practice at present we will not be able to commence working on this file in the short term,” and that “[w]e will endeavour to process the work as soon as possible buy cannot give an indication at this point.

8. The Tribunal finds that a failure to lodge required documents with the ATO in the related nomination application is not a reasonable basis for non-attendance at the hearing scheduled on 1 November 2019.  The Tribunal reiterates from its interim dismissal decision the fact that the Tribunal considered a postponement request from the applicant on the basis that the applicant’s nominating employer did not have all the required documentation ready and notes that it declined to postpone the hearing, and wrote to the applicant on 31 October 2019 clearly stating that the hearing would proceed as listed.

9. The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.

   DECISION

10. The Tribunal confirms the decision to dismiss the application.

    Mary Sheargold
    Member