Palinkas Goncalves Aguilar (Migration)

[2020] AATA 3880

Palinkas Goncalves Aguilar (Migration) [2020] AATA 3880 (13 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Felipe Palinkas Goncalves Aguilar

CASE NUMBER:  1829857

HOME AFFAIRS REFERENCE(S):          BCC2018/963129

MEMBER:Phoebe Dunn

DATE:13 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 13 July 2020 at 4:58pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Café or Restaurant Manager – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, r 1.13; Schedule 2, cl 187.233

CASES

Hasran v Minister for Immigration & Citizenship [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
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 Minister for Immigration and Border Protection [2014] FCCA 1403
Yang v Minister for Immigration and Citizenship [2010] FMCA 890

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 February 2018. 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the related nomination application by A Falzon & AJ Falzon (the nominator), being the nomination application referred to in cl.187.233(1), was refused by a delegate of the Minister on 22 August 2018 and as such there was no approved nomination.

6. On 10 September 2018 the nominator sought a review of the decision to refuse the nomination application nominating the applicant to work in the nominated position, but on 1 May 2020 the Tribunal affirmed the decision to refuse the nomination on review.

7. By letter date 14 May 2020, the Tribunal wrote to the applicant in accordance with the requirements of s.359A of the Act, inviting the applicant to comment on or respond to information that the Tribunal believed, subject to any comments or response, would be the reason or part of the reason for affirming the decision under review.  The Tribunal outlined the particulars of the information and explained the relevance of the information and the consequences of the Tribunal relying on the information. 

8. In its letter, the Tribunal noted that the related nomination application had been affirmed on review by the Tribunal on 1 May 2020 and this meant that the nomination had not been approved as required under cl.187.233(3) of the Regulations. The Tribunal stated that this information was relevant to the review because it is a requirement for the grant of a Subclass 187 visa that the related nomination application identified in the applicant’s Subclass 187 visa application had been approved.  The Tribunal stated further that if the Tribunal relied on this information in making its decision it may find that the applicant is not the subject of an approved nomination and this would mean that the applicant does not satisfy the requirements for the grant of a Subclass 187 visa in cl.187.233(3) and that the Tribunal must affirm the decision under review.

9. In its letter, the Tribunal invited the applicant to comment on or respond to the information in writing, or to seek an extension of time within which to do so, by 28 May 2020, noting that if the comments or response were not received by the stated date or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s view on the information and that the applicant would lose any entitlement he may have under the Act to appear before the tribunal to give evidence and present arguments.  By email received on 28 May 2020 the applicant requested an extension of time within which to comment or response, which was granted to 11 June 2020. No response was received from the applicant within the stipulated time, as extended.

10. The Courts have confirmed that where an applicant fails to provide the requested comments or information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.[1]  Accordingly, as the applicant failed to comment on or respond to the information within the prescribed period, he has lost any right to appear before the Tribunal to give evidence and present arguments relating to the review application.

    [1] Singh v Minister for Immigration and Border Protection [2014] FCCA 1403, 32-39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40

11. By letter dated 15 June 2020, the Tribunal again wrote to the applicant noting that as the Tribunal did not receive a response to its letter, or a request for an extension of time within which to respond by the due date, the applicant had lost his right to appear before the Tribunal to give evidence and present arguments. The Tribunal further advised that it would not be making a decision on the case before 29 June 2020 and advised that the applicant may provide any information or documents that the applicant thinks would support his case, including commenting on or responding to the information he was invited to comment on or respond to in the Tribunal’s letter dated 14 May 2020, by 29 June 2020.

12. As at the date of this decision, the Tribunal has received no response from the applicant to either of its letters.

13. The Tribunal has considered whether it should exercise its discretion under s.359C(2) of the Act to take any further steps to obtain information or a comment or response from the applicant. The Tribunal has also considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide information or to comment or respond. 

14. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] 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[4] regarding the application of the principles of reasonableness when exercising its discretion, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[6] where analogous issues were discussed.

    [2] [2002] FCA 617

    [3] [2012] FMCA 28

    [4] [2013] HCA 18 (8 May 2013)

    [5] [2014] FCAFC 1 (4 February 2014)

    [6] [2014] FCA 915 (28 August 2014)

15. The Tribunal considered whether, in the circumstances of this case, the applicant has had a fair opportunity to comment on or respond to the adverse information that there is no approved nomination and the significance of the adverse information to the applicant.

16. In these circumstances, the Tribunal considers that the applicant has had a fair opportunity to comment on or respond to the adverse information that there is no approved nomination, and no comment or response has been forthcoming.  In these circumstances, the Tribunal has decided to make a decision on the review without taking further action to obtain the applicant’s views on the information in accordance with s.359C(2) of the Act, or to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. 

17. The applicant was represented in relation to the review by his registered migration agent, Mr Suraj Khatri.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether the related nomination application has been approved.

    Nomination of a position

20. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

21. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 of the Regulations); 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.

22. On 22 August 2018, a delegate of the Minister refused the related nomination application nominating the applicant in the nominated position, being the nomination referred to in cl.187.133(1) and on 1 May 2018 the Tribunal affirmed that decision on review. This means that the nomination has not been approved as required under cl.187.233(3) of Schedule 2 to the Regulations. After careful consideration of the material before it, the Tribunal finds that cl.187.233(3) is not met.

23. Therefore, cl.187.233 is not met.

24. 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Phoebe Dunn
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.