Ng (Migration)

[2019] AATA 5232

Ng (Migration) [2019] AATA 5232 (25 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kah Hui Ng
Miss Chunhua Pan

CASE NUMBER:  1711876

HOME AFFAIRS REFERENCE(S):           BCC2013/854844 BCC2017/2265696

MEMBER:Nicola Findson

DATE:25 September 2019

PLACE OF DECISION:  Perth

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

Statement made on 25 September 2019 at 11:43am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Federal Circuit Court remittal – Direct Entry stream – Fashion Designer – no nomination approval – requested evidence applicant met requirements not submitted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 1.13, Schedule 2, cl 187.233

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
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 Immigration and Border Protection 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 14 June 2013. At the time of 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 (the applicant) is seeking to satisfy the requirements in the Direct Entry stream, to work in the nominated position of Fashion Designer (ANZSCO 232311).

5. On 14 May 2014, the delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no approved nomination.

6. On 29 March 2016, the Tribunal (differently constituted) affirmed the Department’s decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas. That Tribunal found the applicant did not meet cl.187.233 because there was no approved nomination.

7. On 16 June 2016, the applicants lodged an application for judicial review with the Federal Circuit Court. On 29 May 2017, the Court ordered by consent that the decision of the previously constituted Tribunal was affected by jurisdictional error, in that it failed to comply with s.359A of the Act by sending the invitation to comment on information dated 4 March 2016 to the applicants’ authorised recipient’s previous email address instead of to the authorised recipient’s updated email address.  This Tribunal is now taking a fresh look at this matter pursuant to the order of the Federal Circuit Court. 

8. The applicants were represented by their registered migration agent, Ms Cathryn Ng, in relation to the review.

9. On 16 January 2019 the Tribunal wrote to the applicants pursuant to s359A of the Act inviting their comments or response to the following information:

   ·On 15 February 2016, the Tribunal affirmed the decision to refuse the nomination application lodged by Witty Swiftly Pty Ltd, the position for which the applicant was the nominee;

   ·On 17 March 2016, Witty Swiftly Pty Ltd, filed an application for review of the Tribunal’s decision in the Federal Circuit Court, which application was dismissed on 28 November 2018. Consequently, the decision made by the Department of Immigration and Border Protection on 3 April 2014, to refuse the nomination stands.

10. The Tribunal explained that the information is relevant as it may lead it to find that there is no approved nomination for the position to which the application for Subclass 187 visas relates.  It explained that if it makes this finding, it may also find that the requirements of cl.187.233 of the Regulations are not met, which requires there to be a current approved nomination, and the Tribunal would then affirm the decision to refuse the grant of the visas.

11. On 25 and 30 January 2019, the applicants, via their representative, responded and provided information in relation to Witty Swiftly Pty Ltd. The applicants requested that the Tribunal defer any determination of its review application until a judicial review application lodged with the Federal Court on 24 December 2018 by Witty Swiftly Pty Ltd had been finalised.  The applicant’s response indicated that the Notice of Appeal had been lodged, and a directions hearing occurred on 24 January 2019, following a decision of the Federal Circuit Court to dismiss Witty Swiftly Pty Ltd’s judicial review application. The Tribunal determined to schedule a hearing and to consider submissions at the hearing.

12. On 24 June 2019, the Tribunal wrote to the review applicants, advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The applicants were invited to appear before the Tribunal on 24 July 2019, to give evidence and present arguments, but an adjournment was sought, and granted, on the basis of the unavailability of the representative.

13. On 6 August 2019, after receiving a new invitation to attend a hearing on 23 September 2019 from the Tribunal, the applicants’ representative again sought to postpone the hearing on the basis of her unavailability (from 16 September to 25 October 2019). In the circumstances of this case, and considering the explanation for the postponement request as well as the need for the Tribunal to progress the review in accordance with its statutory objectives, the Tribunal refused this subsequent postponement request, but did offer an earlier hearing date to the applicants.  By way of response, the Tribunal was informed by Ms Ng that the applicants would prefer to proceed with their hearing, with another representative in attendance, on 23 September 2019.

14. On 23 September 2019, the applicants did not attend to give evidence and present arguments.  The Tribunal received an email from the applicants’ representative on the morning of the scheduled hearing, although the Tribunal notes it was dated 20 September 2019.  The email advised that the applicants would “abide by the decision of the Tribunal” and not attend the hearing scheduled for 23 September 2019. 

15. This matter has therefore been determined on the evidence available to the Tribunal.

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

    Request to defer making a decision

17. The Tribunal has had regard to the following matters in assessing whether to defer making a decision in this application for review.

18. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[^1] and Manna v Minister for Immigration and Citizenship[^2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5].

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

19. The Tribunal has had regard to the history of the visa application and related nomination application.  The Tribunal took into consideration the findings as set out below regarding the sequence of events prior to the review application being lodged with the Tribunal.  The review application was made to the Tribunal on 18 May 2014.  On 29 March 2016 the Tribunal (differently constituted) affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.  By order of the Federal Circuit Court, the review application was remitted back to the Tribunal by consent on 29 May 2017.

20. On 16 January 2019, under the process in s.359A of the Act, the Tribunal invited the applicants to comment on information that the decision to refuse the nomination application had been affirmed by the Tribunal on 15 February 2016, and, that the Federal Circuit Court had dismissed Witty Swiftly Pty Ltd’s appeal in relation to the Tribunal’s decision on 28 November 2018. The Tribunal considered the response, but notes that no information was provided in response to the adverse information, nor were many details provided regarding the adjournment request on the basis of the pending Federal Court judicial review proceeding.

21. The applicant has been on notice since April 2014 that he does not meet the requirement in cl.187.233.  The review application was initiated in May 2014 and the applicant has been on notice that the requirement in cl.187.233 was the criteria to be considered on the review application.

22. The Tribunal considered the request to adjourn the review application until the completion of recently instigated a Federal Court judicial review proceeding. The Tribunal considered this adjournment request was in essence an application to adjourn the matter indefinitely as there is a substantial degree of uncertainty as to when the Federal Court judicial review proceeding would be finalised. The Tribunal notes that a directions hearing was listed for 24 January 2019. The Tribunal has not been provided with any information from the applicants as to when the judicial review application might be listed for a full hearing, noting it will depend on the Federal Court’s resources and hearing arrangements.

23. Further, there is a possibility that at the conclusion of the Federal Court process the nominating employer may seek to pursue a further appeal from that decision. In the event the Court proceedings were favourable to Witty Swiftly Pty Ltd then the matter is likely to be remitted for further consideration by the Tribunal in any event, which will result in further delay. Consequently, the resolution of the related nomination application may take an extended period of time. The Tribunal appreciates that the outcome of the judicial review proceedings and any subsequent Tribunal review may well lead to an alternative outcome in Witty Swiftly Pty Ltd’s nomination application. However, the Tribunal is mindful of its objectives as set out in s.2A of the Administrative Appeals Tribunal Act including to provide a mechanism of review that is fair, just economical, informal and quick and promote public trust and confidence in the decision-making of the Tribunal. The Tribunal does not consider an adjournment of the review application until a Federal Court judicial review application (or any potential subsequent review) is determined in respect of the sponsor’s nomination decision is reasonable in the circumstances. The judicial review process and the outcome of that process will occur at some indefinite time in the future.  In this case, Witty Swiftly Pty Ltd has had the opportunity for a full merits review by the Tribunal of the decision to refuse the nomination application, as well as a judicial review of the Tribunal’s decision by the Federal Circuit Court.  It is appropriate and in accordance with the Tribunal’s objectives to now consider and determine the related visa refusal review application.

24. After considering the request to defer making a decision pending the outcome of the Federal Court judicial review application, for the reasons set out above, the Tribunal declines the request.

25. After considering the period of time since the visa application was lodged; that the Department and the Tribunal have already considered the nomination application and determined that it did not meet the necessary requirement; and that the Federal Circuit Court has dismissed Witty Swiftly Pty Ltd’s appeal application, the Tribunal declines to defer making a decision in this review application until the outcome of the Federal Court application is known.

26. The Tribunal considers that it is now appropriate, in line with its objectives, to consider and determine the applicants’ review application.

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. The issue in the present case is whether the applicant is subject to a nomination approved by the Minister.

    Nomination of a position

28. 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.

29. 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.

30. The Tribunal made the following findings based on the delegate’s decision record provided by the applicant for the purpose of the review, and the written submissions of the representative:

    ·On 14 June 2013 the applicants made application for subclass 187 visas.  The application was made on the basis that the applicant’s nominating employer was Witty Swiftly Pty Ltd.

    ·On 3 April 2014 a delegate made a decision to refuse the nomination application lodged by Witty Swiftly Pty Ltd, in respect of the applicant.  

    ·On 15 February 2016 the Tribunal affirmed the decision to refuse the nomination application lodged by Witty Swiftly Pty Ltd in respect of the applicant.

    ·On 28 November 2018, the Federal Circuit Court dismissed Witty Swiftly Pty Ltd’s application for judicial review of the Tribunal’s decision to affirm the decision of the Department.

31. On 16 January 2019 the Tribunal sent a letter to the applicants under s.359A of the Act inviting their comments or response to information that the Tribunal had affirmed the decision to refuse the nomination application lodged by Witty Swiftly Pty Ltd for the position of Fashion Designer, the position for which the applicant was the nominee, and, in addition, that the Federal Circuit Court had dismissed Witty Swiftly Pty Ltd’s appeal in relation to the Tribunal’s decision. By way of response, the applicants indicated that the refused nomination by the nominating sponsor had been appealed to the Federal Court, and they urged the Tribunal to delay determining their review application until the judicial review is finalised. 

32. The applicants did not submit or provide any evidence that the applicant met the requirement in cl.187.233.

33. On the evidence before it, the Tribunal is not satisfied the nomination has been approved. As there is no approved nomination, the requirements of cl.187.233 are not met.

34. The applicants have 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.

    DECISION

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

    Nicola Findson
    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

    (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.