Paul (Migration)

[2019] AATA 2991

Paul (Migration) [2019] AATA 2991 (20 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bishal Paul

CASE NUMBER:  1730758

HOME AFFAIRS REFERENCE(S):          BCC2017/751946

MEMBER:Katie Malyon

DATE:20 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 May 2019 at 2:47 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – no response to s 359A invitation – not entitled to appear before the Tribunal – Temporary Residence Transition stream – Café or Restaurant Manager – subject of an approved nomination – nomination application refused – review application withdrawn – decision under review affirmed

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

CASES
Hasran v MIAC [2010] FCAFC 40

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 Immigration and Border Protection on 22 November 2017 to refuse to grant the applicant, Mr Bishal Paul, an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Paul applied for the visa on 24 February 2017.  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 (the Regulations).  Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

4. In the present case, Mr Paul is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Café or Restaurant Manager ANZSCO 141111.

5. The delegate refused to grant the visa on the basis Mr Paul did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination application made by his prospective employer, Tasne Enterprise Pty Ltd (the Company), was refused by the Department.  Mr Paul was represented in relation to the review by his registered migration agent.  

   Background

6. Mr Paul was nominated to fill the position of Café or Restaurant Manager with the Company.  However, the Company’s nomination was refused by the Department on 10 October 2017.  As a result, the Department refused Mr Paul’s Subclass 186 visa application.  The Company sought review of the delegate’s refusal of its nomination application (Matter No. 1726246): however, the Company has since withdrawn that application for review.

7. On 29 March 2019, the Tribunal wrote to Mr Paul pursuant to s.359A of the Act inviting him to comment on, or respond to, information which would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse his Subclass 186 visa application. The Tribunal informed Mr Paul that the Company had withdrawn its review application with the Tribunal and so the Company’s nomination application for the nominated position in respect of Mr Paul has not been approved. As a result, the position to which his Subclass 186 visa application relates cannot meet the criteria in cl.186.223 of Schedule 2 to the Regulations.

8. In its s.359A letter, the Tribunal requested Mr Paul to provide any comments or response to the information in the Tribunal’s letter on or before 9 April 2019. The Tribunal’s letter to Mr Paul was sent to his representative’s email address as advised to the Tribunal when lodging the application for review on 6 December 2017. No response, or request for an extension of time to provide a response, has been received from Mr Paul or his representative.

9. As Mr Paul has not provided any response to the Tribunal’s s.359A letter, s.359C of the Act applies and, pursuant to s.360(3) of the Act, he 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

10. 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

11. Clause 186.223 of Schedule 2 to the Regulations, 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 same one that was the subject of the declaration made by the visa applicant that is required to be made as part of the Subclass 186 visa application.

12. 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 r.1.13A and r.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.

13. The Company’s nomination application was refused by the Department. Subsequently, the Company lodged an application for review with the Tribunal: however, the review application was later withdrawn from the Tribunal. Mr Paul has failed to provide any response to, or comment on, this information when requested to do so by the Tribunal in its s.359A letter. In the circumstances, as the nomination application made by the Company for the position of Café or Restaurant Manager to which Mr Paul’s Subclass 186 visa application relates has not been approved, it follows that he does not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations. Therefore, cl.186.223 of Schedule 2 to the Regulations is not met.

14. Mr Paul 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 stream.  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

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

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from the Migration Regulations 1994

    Schedule 2

    …

    Part 186

    …

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; 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.

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