Olley (Migration)

[2023] AATA 3274

Olley (Migration) [2023] AATA 3274 (2 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Leon Jack Olley

REPRESENTATIVE:  Mr Minghao Wang (MARN: 1382452)

CASE NUMBER:  2214611

HOME AFFAIRS REFERENCE(S):          BCC2020/891758

MEMBER:Antonio Dronjic

DATE:2 October 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 02 October 2023 at 10:33am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – building associate – subject of approved position nomination – related nomination application refused and application for review withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C(2), 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223(1), (2)

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Kaur v MIBP [2014] FCA 915
Manna v MIAC [2012] FMCA 28
MIBP v Singh [2014] FCAFC 1
MIMA 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 Home Affairs on 14 September 2022 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 January 2021. 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 (Cth) (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 the Temporary Residence Transition stream, to work in the nominated position of Building Associate (ANZSCO 312112).

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination lodged by Remedial Technologies Australia PTY LTD, being the nomination referred to in paragraph 186.223(1) was refused by a delegate of the Minister for Home Affairs on 12 July 2022.

6. The applicant applied to the Tribunal on 4 October 202 and provided a copy of the primary decision record with the applications.

7. On 14 September 2023, the Tribunal wrote to the applicant inviting comments on or response to the information under section 359A. The s. 359A letter sought the applicant’s comment on or response to the following information:

   On 7 January 2021, Remedial Technologies Australia PTY LTD (the nominator)
   applied to the Department of Home Affairs (the Department) to nominate you for
   the position of Building Associate (ANZSCO 312112).

   On 12 July 2022, the application for the approval of the nominated position made
   by the nominator was refused by the Department. The nominator applied to the
   Tribunal for the review of that decision. On 22 May 2023, the nominator withdrew their application for review.

   On 24 May 2023, the Tribunal found it had no jurisdiction in relation to the review

   This information, if accepted and relied upon by the Tribunal, would be the reason or
   part of the reason for the Tribunal to affirm the decision made by the Department to
   refuse you the grant of a Subclass 186 visa. This is because one of the criteria
   contained within Subclass 186, namely cl.186.223(2) requires that the nomination has
   been approved by the Minister.

   You are invited to give comments on or respond to the above information in writing…

8. The invitation was sent to the applicant’s address provided in connection with the review and advised that, if the comments on or response to the information was not provided in writing by 28 September 2023, and no extension of time has been sought or granted, the Tribunal may make a decision on the review without taking further steps to obtain the comments on or response to the information contained in the Tribunal letter of 14 September 2023. The Tribunal further informed the applicant that he will lose any entitlement he might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments regardless of whether he had, or will receive, an invitation to attend a hearing.

9. The applicant has not provided comments on or response to the information contained in the Tribunal letter of 14 September 2023.

10. In these circumstances, s.359C(2) applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

11. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicants additional time in which to provide comments on or response to the information contained in the Tribunal letter of 13 September 2023.

12. 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. 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] 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)

13. The Tribunal considered whether, in the circumstances of this case, the applicant’s comments on or response to the information contained in the Tribunal’s s359A letter are likely to be forthcoming, whether the applicant had a fair opportunity to provide comments on or response to the information and the significance of the information to the applicant.

14. In this case the Tribunal wrote to the applicant under subsection 359A of the Act inviting him to provide comments and/or or response to the Tribunal letter of 14 September 2023. The applicant has failed to do so within the prescribed period set for this purpose.

15. The Tribunal has had regard to the fact that the visa application was refused by the Department on 14 September 2022, because the applicant was unable to meet the cl.186.223 ((2) which requires that the Minister has approved nomination. The applicant submitted a copy of the primary decision record with the review application. The applicant was aware of the reasons for the delegate’s’ decision for more than 12 Months.

16. The Tribunal note that, if the applicant is not granted (Permanent) (Class EN) visa, he may be required to depart Australia. There is nothing to prevent the applicant from re-applying for a visa once the applicant finds the new employer willing to nominate him for the position within their business.

17. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant have had sufficient time in which to address the central issues arising in the applications for review and a fair opportunity to provide their comments on or response to information contained in the Tribunal letter. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

19. 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.

20. 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 reg 1.13A and reg 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.

21. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 186.223 lodged by Remedial Technologies Australia PTY LTD on behalf of the applicant, has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that the applicant does not meet the requirements of clause 186.223 at the time of its decision.

22. 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

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

    Antonio Dronjic
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.