Patel (Migration)

[2024] AATA 3480

Patel (Migration) [2024] AATA 3480 (19 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vatsal Yashvantkumar Patel

CASE NUMBER:  2320620

HOME AFFAIRS REFERENCE(S):          BCC2022/4860597

MEMBER:Antonio Dronjic

DATE:19 September 2024

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 September 2024 at 10:39am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – position of Financial Advisor – no approved nomination – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 186.223, 186.233; r 1.13

CASES

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
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

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 30 November 2023 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 15 November 2022. 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 Financial Advisor (ANZSCO 261311).

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination lodged by Sab Facilities Pty Ltd, being the nomination referred to in paragraph 186.233(1) was refused by a delegate of the Minister for Home Affairs on 5 October 2023.

6. The applicant applied to the Tribunal on 16 December 2023 and provided a copy of the primary decision record with the application.

7. On 29 August 2024, the Tribunal wrote to the applicant inviting comments on or response to the information under section 359A.

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 18 September 2024, 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 29 August 2024. 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 has, 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 29 August 2024.

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 applicant additional time in which to provide comments on or response to the information contained in the Tribunal letter of 29 August 2024.

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 29 August 2024. 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 30 November 2023, because the applicant was unable to meet the cl.186.233 (3) 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 nine months.

16. The Tribunal note that, if the applicant is not granted (Permanent) (Class EN) visas, 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 has had sufficient time in which to address the central issues arising in the application for review and a fair opportunity to provide his 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 186.233 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. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 186.233 lodged by Sab Facilities 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 186.233 at the time of its decision.

22. The applicant has 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 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

    186.233(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.