Olivier (Migration)

[2019] AATA 5672

Olivier (Migration) [2019] AATA 5672 (16 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arthur Antoine Ignace Olivier

CASE NUMBER:  1727915

HOME AFFAIRS REFERENCE(S):          BCC2017/506277

MEMBER:Mary Sheargold

DATE:16 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 16 September 2019 at 1:39pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visas – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Baker – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, r 5.19; Schedule 2, cl 186.223

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
Singh v MIBP [2017] FCAFC 105

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 on 24 October 2017 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 7 February 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, to work in the nominated position of Baker (ANZSCO 351111).

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because there was no approved nomination.

6. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether there is an approved nomination.

   Nomination of a position

9. 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.

10. 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.

11. The applicant’s nominating employer, Spintold Pty Ltd, applied to the Department for the approval of the position of Baker in respect of the applicant.  The Department refused to approve the nomination and the employer applied to the Tribunal for review of that decision.

12. On 23 August 2019, the Tribunal affirmed the Department’s decision not to approve the nomination in respect of the applicant.  On 30 August 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting him to comment on or respond to information that the Tribunal considered would, subject to the applicant’s comments or response, be the reason or part of the reason for affirming the decision under review. 

13. The particulars of that information were that the applicant for approval of the nominated position made by Spintold Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration, that the nominator sought a review of that decision but it was recently affirmed by the Tribunal, and that this means that the nominator’s application for the nominated position has not been approved.

14. The letter told the applicant that this information was relevant to the review because if the Tribunal relied on this information in making its decision, it may find that the position specified in the applicant’s visa application is not the subject of an approved nomination, and this would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review.

15. The applicant was invited to give comments on or respond to this information in writing by 13 September 2019, and the applicant was advised that a failure to respond would mean a loss of entitlement to appear before the Tribunal to give evidence and present arguments.  The letter was sent to the applicant’s representative’s email address provided to the Tribunal by the applicant as his address for correspondence. The Tribunal notes that the applicant did not comment on or respond to the information on or before 13 September 2019.  As at the date of this decision, no response has been forthcoming and in these circumstances, the Tribunal is able to proceed to decision based on the evidence before it.

16. The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support its review application.

17. In doing so, the Tribunal has taken into account the decisions in 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 of Australia 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).

18. The Tribunal has considered whether, in the circumstances of this case, the information that the applicant meets the requirements in cl.186.223 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 already, and the significance of the information to the applicant.

19. The Tribunal has had regard to the fact that the application was refused by the Department on 24 October 2017 because the delegate concluded there was no approved nomination.  The applicant submitted a copy of the primary decision record with the review application.  As a result, the Tribunal observes that the applicant has been aware for more than 22 months of the reasons for the visa application refusal.

20. Further, as noted above, the applicant has provided no further information to the Tribunal since the application for review was received on 14 November 2017, despite being invited to do so.

21. In these circumstances, and for the reasons set out in this decision record, 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 he meets the requirements of cl.186.223 of Schedule 2 to the Regulations. The Tribunal is not disposed to delay making a decision indefinitely.

22. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that his application meets the requirements of cl.186.223.

23. As set out in paragraph 12 above, the Tribunal notes that on 23 August 2019, the Tribunal affirmed the decision of the Department not to approve nomination in respect of the applicant. The Tribunal finds that the applicant cannot satisfy cl.186.223 of Schedule 2 to the Regulations because the position specified in the visa application is not the subject of an approved nomination.

24. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[6]

    [6] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

25. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, he cannot overcome his current inability to meet cl.186.223 in relation to hisapplication.  The nomination by Spintold Pty Ltd was specifically linked to his visa application, and that nomination was not, and now cannot be, approved.

26. Therefore, cl.186.223 is not met.

27. 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

28. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Mary Sheargold
    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.