Redondo Caicedo (Migration)

[2022] AATA 2033

Redondo Caicedo (Migration) [2022] AATA 2033 (24 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Carolina Patricia Redondo Caicedo
Mr Jose Jorge Molina Medina

REPRESENTATIVE:  Mrs Amber Halverson (MARN: 1687610)

CASE NUMBER:  1836171

HOME AFFAIRS REFERENCE(S):          BCC2018/2787116

MEMBER:P. Maishman

DATE:24 June 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 24 June 2022 at 9:00am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Computer Network and Systems Engineer – subject of an approved nomination – s.359A invitation – request for extension of time declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 186.233, 186.311

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 Home Affairs on 19 November 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 8 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Computer Network and Systems Engineer (ANZSCO 263111).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.233(3) of Schedule 2 to the Regulations because the nomination lodged by Ainka@Technology Pty Ltd was refused.

6. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams Video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The applicant confirmed at the hearing that they were happy for the hearing to proceed in this  manner.

7. The applicants appeared before the Tribunal on 1 June 2022 to give evidence and present arguments. The applicants are the directors of the nominator Ainka@Technology Pty Ltd. In the circumstances the Tribunal held a combined hearing in respect of both this application and the related Nomination refusal.

8. The applicants were represented in relation to the review.

9. On 9 June 2022 the Tribunal wrote to the applicants pursuant to s 359A of the Act. The Tribunal informed the first named applicant the application by Ainka@Technology Pty Ltd for approval of the nominated position was refused by the delegate and the Tribunal had recently affirmed the decision. The Tribunal explained this meant the nominated position was not approved and this was relevant to her review because approval of the nomination was a requirement for the grant of the visa. The Tribunal explained if it found the position specified in her application was not the subject of an approved nomination she would not satisfy a requirement for the grant of the visa. That would be the reason, or part of the reason, to affirm the decision under review. The Tribunal invited the review applicant to provide comments in writing.

10. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 23 June 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

11. On 23 June 2022 the applicant’s representative requested an extension of time to receive instructions from her client and prepare an appropriate response. The Tribunal declined the request because there was no reason given for the applicant not having provided instructions. The Tribunal received subsequent written notice from the applicant’s representative advising the Tribunal could proceed to make its decision.      

12. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear again 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The Tribunal had before it a copy of the Department’s file.

15. The first named applicant gave the Tribunal a copy of the delegate’s decision record with the review application.

16. At hearing the Tribunal explained to the applicant that the nomination of Ainka@Technology Pty Ltd must be approved for the visa application to succeed.    

17. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

18. 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.

19. 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.

20. In this case the applicant applied for a Subclass 186 visa based on the nomination application lodged by Ainka@Technology Pty Ltd, being the nomination referred to in cl 186.233(1) of Schedule 2 to the Regulations. The nomination application was lodged with the Department on 22 March 2018. The nomination application was refused by a delegate of the Minister on 18 September 2018. Consequently, on 19 November 2018 the applicant's Subclass 186 visa was refused by the delegate on the basis that there was no approved nomination.

21. Ainka@Technology Pty Ltd applied to the Tribunal for review of the decision to refuse its nomination application. On 8 June 2022 the Tribunal affirmed the decision to refuse the nomination application. This means the matter has been finally determined and there is no approved nomination as required under cl 186.233(3) of Schedule 2 to the Regulations.

22. Therefore, cl 186.233 is not met.

23. The second named applicant made a combined application for the visa with the first named applicant on the basis he was a member of her family unit.

24. Clause 186.311 is met if the secondary applicant is a member of the family unit of a person who holds a Subclass 186 visa. As the first named applicant does not hold a Subclass 186 visa, it follows the second named applicant does not meet cl 186.311.

25. 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

26. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    P. Maishman
    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.