Pagtalunan (Migration) - [2023] AATA 3701

Pagtalunan (Migration) [2023] AATA 3701 (12 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gerald Jerome Ramos Pagtalunan
Mrs Gerica Dela Cruz Pagtalunan
REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)
CASE NUMBER:  2113975
HOME AFFAIRS REFERENCE(S):          BCC2021/57398
MEMBER:Karen McNamara
DATE:12 October 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the first named applicant a Skilled Nominated (Permanent) visa.
·   The Tribunal does not have jurisdiction in the matter in relation to the second named applicant.

Statement made on 12 October 2023 at 11:03am
CATCHWORDS
MIGRATION –Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – Chef – applicants did not provide information in support of their review application – applicant’s assessed score was lower than the invitation score – applicant has not provided any evidence, regarding the results of an English language test – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 338, 347, 359, 360, 363
Migration Regulations 1994, rr 1.15, 2.26, Schedule 2, cl 190.214
CASES
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Yang v MIAC [2010] FMCA 890
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 September 2021, to refuse to grant the applicants Nominated (Permanent) (Class SN) Subclass 190 (Skilled - Nominated) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This is a points based visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.
The first named applicant, Mr Gerald Jerome Ramos Pagtalunan (the applicant) was invited to apply for the visa on 13 April 2021, subsequently lodging an application with the Department on 21 April 2021. The criteria for the grant of a Subclass 190 - Skilled - Nominated visa are set out in Part 190 - Skilled - Nominated of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The primary decision record shows that on 22 September 2021, the delegate refused to grant the visas because the applicant did not satisfy the ‘points test’ criterion in cl 190.214. Having assessed the applicant’s score to be 65 points, the delegate noted that the assessed score of 65 points is less than the score of 70 as specified in the invitation letter. As such, the delegate found the applicant does not meet cl 190.214(1) of Schedule 2 to the Regulations, hence not satisfying the requirements of cl 190.214. Essentially, this was due to the delegate excluding periods of the applicant’s claimed employment in Australia.
The applicant claimed 15 points on the basis of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Pagtalunan (Migration) [2023] AATA 3701
Case: [2023] AATA 3701
Decision Date: 12 October 2023

CaseChat Overview and Summary

This matter concerned an application for review by Mrs Gerica Dela Cruz Pagtalunan and a second applicant (whose name is not specified) of a decision not to grant them a Skilled Nominated (Permanent) visa (Class SN), Subclass 190. The applicants sought review of the decision to affirm the refusal of their visa applications. The Federal Circuit and Family Court of Australia, presided over by Member Karen McNamara, considered the applicants' failure to provide necessary information and evidence to the Tribunal.

The primary legal issues before the court were whether the applicants had satisfied the requirements for the visa, specifically concerning their assessed score and English language proficiency, and whether the Tribunal had correctly exercised its powers in affirming the decision without further engagement from the applicants. The court also had to determine its own jurisdiction in relation to the second applicant.

The Tribunal had invited the applicants to provide comments or responses regarding information that suggested their assessed score was lower than the invitation score and that they had not provided evidence of English language test results, which were relevant to clause 190.214(1) of the Migration Regulations 1994. While an extension of time was granted to 28 August 2023, no further communication or response was received from the applicants or their representative. The court noted that under subsections 359A, 359C(1), and 360(3) of the Migration Act 1958, the Tribunal may make a decision without further comment from the applicant if they fail to respond within the prescribed period, and the applicant is not entitled to appear before the Tribunal. The court applied these provisions, finding that the applicants had not met the requirements of section 347 of the Act.

Consequently, the Tribunal affirmed the decision not to grant the first named applicant a Skilled Nominated (Permanent) visa. The court further determined that it did not have jurisdiction in relation to the second named applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal’s letter of 7 August 2023 noted that this information is relevant because cl.190.214(1) requires that the applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the score stated in the invitation to apply for the visa. The letter further stated;‘ If the Tribunal relies on this information, it may find that your application does not satisfy the requirement of cl.190.214 and consequently the decision under review would be affirmed.You are invited to give comments on or respond to the above information in writing.Your comments or response should be received by 21 August 2023. If the comments or response are in a language other than English, they must be accompanied by anEnglish translation from an accredited translator.If you cannot provide your written comments or response by 21 August 2023, you may ask us for an extension of time in which to provide the comments or response. If youmake such a request, it must be received by us by 21 August 2023, and you must state the reason why the extension of time is required.We will carefully consider any request for an extension of time and will advise whetheror not the extension has been granted.If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.’ The invitation to comment/respond was sent to the authorised recipient /representative at the last email address provided in connection with the review and advised as stated above, if the comments/response were not provided in writing by 21 August 2023, the Tribunal may make a decision on the review without taking further steps to obtain the applicants’ comments and the review applicants would lose any entitlement they might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments. On 21 August 2023, the representative via email requested an extension of time to respond to the Tribunal’s invitation to comment, noting as follows;‘We would like to request for additional time to provide the requested documents. I had been sick and I didn't have enough time to prepare the submission for the applicant. We would like to request an additional 7 days to send the requested documents.’ On 22 August 2023, the Tribunal advised the representative via email, that an extension of time was granted to 28 August 2023. As at the time of this decision, the Tribunal has received no further communication or response from the applicant or an authorised representative of the applicant, despite requesting an extension of time to respond, nor have the applicants indicated they wish to withdraw this matter. Where an applicant is invited to provide comment/response in accordance with subsection 359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the comments/response (subsection 359C(1) of the Act), and pursuant to s.360(3) of the Act, 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; (2010) 183 FCR 413 at [26]; and Yang v MIAC [2010] FMCA 890 at [40].

Decision

Reasons for decision

As such the application for review made by Mrs Gerica Dela Cruz Pagtalunan does not meet the requirements of s.347 of the Act and accordingly, the Tribunal does not have jurisdiction in relation to the second named applicant.DECISION The Tribunal affirms the decision not to grant the first named applicant a Skilled Nominated (Permanent) visa.·The Tribunal does not have jurisdiction in this matter in relation to the second named applicant.Karen McNamaraMember

Ratio Decidendi

Legal Principle Established

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