Panchal (Migration)

[2022] AATA 3601

Panchal (Migration) [2022] AATA 3601 (19 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamleshkumar Prahladbhai Panchal

CASE NUMBER:  1909048

HOME AFFAIRS REFERENCE(S):          BCC2018/2368297

MEMBER:Alison Mercer

DATE:19 October 2022

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 19 October 2022 at 5:41pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – ICT business consultant – subject of approved position nomination – related nomination application refused, company deregistered and no jurisdiction to review – legislative amendments mean requirements cannot be satisfied by new nomination – no response to tribunal’s invitation to comment and decision made on available evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 1, para 1114B(3)(d), Schedule 2, cl 186.223(2)

CASES

Hasan v MIBP [2016] FCCA 1049

Hasran v MIAC (2010) 183 FCR 413

Kaur v MIBP [2017] FCCA 564

Khanom v MIBP [2016] FCCA 3259

MIAC v Li (2013) 249 CLR 332

Singh v MIBP [2016] FCCA 2229

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 Home Affairs on 4 April 2019 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 1 June 2018. 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 Direct Entry stream, to work in the nominated position of ICT Business Consultant.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.233 of Schedule 2 to the Regulations, which required that he was the subject of an approved nomination by his Australian employer. The delegate found that the nomination of the applicant by his employer, AVMCO Pty Ltd, had been refused on 1 March 2019. The delegate therefore found that the applicant did not meet the criteria for a subclass 186 in the Direct Entry stream, and had not claimed to meet the criteria for any other stream.

6. The Tribunal received a review application from the applicant on 12 April 2019. It was accompanied by a copy of the delegate’s decision.

7. On 7 September 2022, the Tribunal wrote to the applicant to invite him to attend a telephone hearing on 13 October 2022.

8. On 15 September 2022, the Tribunal wrote again to the applicant to invite him, pursuant to s.359A of the Act, to respond to or comment on information held by the Tribunal that was potentially adverse to his case. Specifically, the Tribunal noted that:

   ·at the time the applicant made his visa application on 1 June 2018, he was nominated by his employer, AVMCO Pty Ltd, as an ICT Business Consultant;

   ·the Department rejected this application on 4 April 2019 because the delegate found that the applicant did not meet cl.186.233 of Schedule 2 to the Migration Regulations as he was not the subject of an approved nomination at the time of the delegate’s decision. The delegate’s findings were made on the basis that the applicant’s employer’s nomination of him for the occupation of ICT Business Consultant had been rejected by the Department on 1 March 2019;

   • the applicant applied to the Tribunal on 12 April 2019 for review of the Department’s decision to reject his subclass 186 visa application;
   • the Tribunal’s records indicated that AVMCO Pty Ltd lodged an application for review of the decision to refuse its nomination with the Tribunal but that the Tribunal made a decision that it had no jurisdiction to review the decision to refuse the nomination on 1 March 2019 as the company had been deregistered on 9 January 2022; and
   • accordingly, there was currently no approved nomination of the appicant by AVMCO Pty Ltd, and the decision to refuse the nomination was not under review by the Tribunal.

9. The Tribunal advised that this information was relevant to the review because, subject to his comments or response, it indicated that:

   • he was not the subject of an approved appointment made by the same employer who nominated him as required by cl.186.233 and this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it was a requirement that he met cl.186.233 at the time of decision; and
   • there was no evidence that he met the criteria in the Temporary Residence Transition or Labour Agreement streams of the subclass 186 visa.

10. The Tribunal noted that since 18 March 2018, major legislative amendments were made to the subclass 186 and 187 visa categories and their associated nominations, such that a nomination by a new employer now would not satisfy cl.186.233 in respect of a subclass 186 visa application lodged prior to 18 March 2018.

11. The Tribunal requested that the applicant provide his comments or response by 29 September 2022, noting that if he did not do so (or did not request an extension of time to do so) by that date, he would lose his entitlement to a Tribunal hearing, the hearing of 13 October 2022 would be cancelled, and the Tribunal might proceed to make its decision on the available evidence without taking any further steps to obtain his views about the information held by the Tribunal.

12. The applicant did not provide any comments or response by 29 September 2022. Nor did he make a request for an extension of time to do so by that date.

13. On 29 September 2022, the Tribunal wrote to the applicant to advise him that he had lost his entitlement to a hearing, but that the Tribunal would defer its decision until 13 October 2022 to enable him to provide any additional information that he wished the Tribunal to consider.

14. The Tribunal did not receive a response, or a request for an extension of time to provide one, by 29 September 2022.  The Tribunal is satisfied that its letter of 15 September 2022 was sent to the email address nominated for correspondence by the applicant in his review application. There is no indication from the Tribunal’s electronic records that it was undelivered or undeliverable.

15. The Tribunal notes that it has no power to extend the period to respond to an invitation when a request for an extension is received after the initial prescribed period has passed: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 at [48]. As above, no extension request was received in the prescribed period. Nor did the applicant provide comments or a response to the information in the Tribunal’s letter in the prescribed period. Accordingly, the applicant has lost his entitlement to have a hearing: s.360(3).

16. The Tribunal did not receive any further information by 13 October 2022 and has received no further communication from the applicant to date.

17. The Tribunal has considered whether to make any further request for comments or a response from the applicant, but – in view of the lack of response by the due date, the confined nature of the criterion in dispute, and the fact that the applicant was given until 13 October 2022 to provide any additional information - the Tribunal has elected not to do so and instead has proceeded to make its decision on the available evidence. It considers that it is reasonable to do so in the circumstances of the case, and having regard to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

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

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

    Nomination of a position

19. Clause 186.233 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. 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.

20. 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 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. It is not disputed that the nomination of the applicant lodged by his employer, AVMCO Pty Ltd, was refused, and that the Tribunal (differently constituted) found that it had no jurisdiction to review that decision on 2 March 2022 as the company had been deregistered on 9 January 2022.

22. It is a requirement for the Direct Entry stream (cl.186.233) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and, on current authority, a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2]

    [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.187.233(1)(c), cl.186.223(1)(c) and cl.186.233(1)(c).

    [2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186)  - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

23. This was the view taken in Singh v MIBP [2017] FCAFC 105[3] (which concerned an almost identically worded criterion for a subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.[4]

    [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

    [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

24. Although the Court’s comments were strictly obiter, they are nonetheless persuasive in relation to subclass 187 visas. As the relevant subclass 186 criteria are in the same terms, the Court’s reasoning also appears applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.186.223 or cl.186.233 (as applicable) unless there is also a review of that decision pending. In this case, there was a review lodged but the Tribunal found that it had no jurisdiction to review that nomination refusal.

25. Accordingly, the Tribunal must find that the applicant is not the subject of an approved nomination, as required by cl.186.233(3) and thus cannot meet cl.186.233 as a whole. He therefore cannot be granted a subclass 186 visa.

26. The applicant have only sought to satisfy the criteria for a subclass 186 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 decisions under review must be affirmed.

    Other matters

27. The Tribunal notes that the Department file contains a s.375A certificate dated 15 May 2019 covering part of the Department’s electronic records; specifically, a file note of 15 October 2018. The certificate states that disclosure of this material would be contrary to the public interest because it would ‘disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.’

28. The Tribunal has reviewed the file note in question, which indicates that a Department taskforce investigating a particular cohort of fraudulent cases had cleared the applicant of involvement. The Tribunal accepts that the certificate is valid but does not consider the information to which it relates is adverse to the applicant. It therefore did not consider that it was obliged to disclose the existence of the certificate or the material covered by it to the applicant pursuant to s.359A of the Act.

29. To be clear, the Tribunal considers both the certificate and the material it covers to be legally irrelevant to the outcome of this case, which turns solely on the fact that the applicant is not the subject of an approved nomination by his original employer.

    DECISION

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

    Alison Mercer
    Member

    
    
    

    ATTACHMENT A

    186.233(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 Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); and

    (b)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 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 not more than 6 months after the Minister approved the nomination.