NYEIN (Migration)

[2018] AATA 1645

NYEIN (Migration) [2018] AATA 1645 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr John Conrad E NYEIN
Ms Wing Yan NG

CASE NUMBER:  1727451

DIBP REFERENCE(S):  BCC2015/2504133

MEMBER:Mr S Norman

DATE:30 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 30 April 2018 at 10:45am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visas – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nominated position of Office Manager – Nomination application refused – Practice and procedure – Request for further information – Extension of time granted – Material evidence not received – Decision made on the papers – Decision under review affirmed

LEGISLATION
Migration Act 1958 ss 65, 359, 359A, 359C, 360, 363
Migration Regulations 1994 rr 1.13A, 1.13B, 5.19 Schedule 2 cls 187.233,187.311

CASES
Huo v Minister for Immigration and Multicultural Affair [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2002] FCA 617
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 28 August 2015. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

3. In the present case, the first named applicant (hereinafter the ‘applicant’ or the ‘primary applicant’) is seeking the visa in the Direct Entry stream, to work in the nominated position of Office Manager (ANZSCO – 512111). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

4. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application lodged by Mobius FM P/L had been refused.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   The Tribunal’s s.359A letter

7. By s.359A letter of 27 March 2018 (dispatched by email to the applicant’s authorised recipient), the Tribunal noted the nomination application by Mobius FM P/L (the nominator) was refused by a delegate of the Minister; and that the application for merits review of that decision to the Tribunal, had been affirmed. Further, the applicant was advised that this means the nominator’s application for the nominated position had not been approved.

8. The applicant was advised that subject to their response, this would be the reason or part of the reason for affirming the delegate’s decision. The applicant was requested to respond in writing by 10 April 2018. At the applicant’s request, an extension of time was granted, and the applicant was then requested to respond in writing by 26 April 2018. At the time and date of this decision, no response had been received.

9. Section 360 of the Act states inter alia the “Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments”. However, section 359C(1) of the Act provides that if a person fails to respond to a s.359 letter, the Tribunal may make a decision on the review without taking any further action to obtain the information. In the circumstances of this case, given no material response was received to the Tribunal’s s.359A letter, and given no material evidence was otherwise lodged with the Tribunal, and given the applicant was made aware of the deficiencies in the application at the time of the delegate’s decision (dated 7 November 2017), I have decided to make a decision on the review without taking any further action to obtain the information.

10. Next, the Tribunal has given consideration to whether it should adjourn the review under subsection 363(1)(b) of the Act in order to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, 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. I have also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment (something that was not subsequently requested in this case), 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] where analogous issues were discussed.

    [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)

11. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirement in cl.187.233(3) of Schedule 2 to the Regulations, is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant. The Tribunal has also had regard to the fact that the application was refused by the Department on 7 November 2017, and also to the above reasoning in paragraph [9].

12. In these circumstances, and based on the evidence set out herein, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations. The Tribunal has decided not to delay its decision any further. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that they meet the aforementioned requirement.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant met cl.187.233(3) of Schedule 2 to the Regulations. That stated:

    187.233

    …

    (3)      The Minister has approved the nomination.

    Nomination of a position

14. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). 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, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

15. 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.

16. On 29 August 2017, the nomination application lodged by Mobius FM P/L, nominating the primary applicant for the position of Office Manager (ANZSCO - 512111) was refused. As set out above, an invitation to comment was issued by the Tribunal, however, no material response was received. That being said, as the nomination was refused, cl 186.233(3) is not met.

17. Accordingly, the applicant does not satisfy the requirements in cl 186.233; and the applicant does not satisfy the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa.

    Other visa streams: 

18. Next, the Tribunal must consider other streams within the visa class:

    Cl. 187.2 – Primary Criteria

    …..

    ·     If an applicant applies for a Subclass 187 visa in the Temporary Residence Transition stream, the criteria in Subdivisions 187.21 and 187.22 are the primary criteria for the grant of the visa.

    ·     If an applicant applies for a Subclass 187 visa in the Direct Entry stream, the criteria in Subdivisions 187.21 and 187.23 are the primary criteria.

    ·     If an applicant applies for a Subclass 187 visa in the Agreement stream, the criteria in Subdivisions 187.21 and 187.24 are the primary criteria.

    The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
    All criteria must be satisfied at the time a decision is made on the application.

19. The Tribunal notes 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 Temporary Residence Transition stream or the Agreement stream have not been met, the decision under review must be affirmed.

    Secondary applicants:

20. Regarding family members (the secondary applicant), cl 187.311 stated:

    187.311

    The applicant:

    (a)      is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b)      made a combined application with the primary applicant.

21. The secondary applicant (Ms Wing Yan NG) has made a valid combined application with the primary applicant. However, no claim was made the secondary applicant would independently satisfy the primary criteria for the grant of the visa. Thus, as the primary applicant does not satisfy the primary criteria for the grant of the visa, the secondary applicant does not satisfy the criteria for the grant of the visa. Accordingly, cl.187.311 is not met.

22. Consequently, 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

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

    Mr S Norman
    Member