Rodbaver (Migration)

[2019] AATA 3080

Rodbaver (Migration) [2019] AATA 3080 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ruslan Rodbaver

CASE NUMBER:  1803655

HOME AFFAIRS REFERENCE(S):          BCC2017/2319464

MEMBER:Nicola Findson

DATE:29 May 2019

PLACE OF DECISION:  Perth

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

Statement made on 29 May 2019 at 10:21am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Welder (First Class) – nomination refused – application for review lodged out of time – no jurisdiction – duplicate review of nomination application likely to be deemed invalid – applicant had sufficient time to take steps to satisfy criteria – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958 (Cth), ss 65, 359, 363
Migration Regulations (Cth) 1994, r 1.13, Schedule 2, cl 186.223

CASES
Huo v MIMA [2002] FCA 617
Manna v MIMC [2012] FMCA 28

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 January 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 June 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). 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 Temporary Residence Transition stream, to work in the nominated position of Welder (First Class) (ANZSCO 322313) for the Barrett Family Trust.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, because the applicant was not the subject of a nomination approved by the Minister.

6. The applicant applied to the Tribunal for review of the Department’s decision on 12 February 2018, and with the application provided a copy of the delegate’s decision record.

7. The applicant was represented in relation to the review by his registered migration agent.

8. The applicant appeared before the Tribunal on 27 March 2019, to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is subject to a nomination approved by the Minister.

    Nomination of a position

11. Clause 186.223 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 one that was the subject of the declaration that was required to be made as part of the current 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 applicant has provided to the Tribunal a copy of the delegate’s decision record, for the purposes of the review.  It records that the nomination lodged by the Barrett Family Trust, of which the applicant was the subject (Transaction Reference Number (TRN, EGOF2BNCIG)), was refused on 30 November 2017.  Accordingly, the delegate found that the nomination was not approved and cl.186.223(2) was not met.

14. On 5 December 2018, the Tribunal wrote to the applicant, via his representative, pursuant to s.359(2) of the Act inviting him to provide information as to whether he is the subject of an approved nomination, or whether there is a pending application for a review of a decision to refuse the nomination.  By way of response, the applicant’s representative wrote to the Tribunal and explained that the nominating employer did lodge an application for review, but the Tribunal found that it did not have jurisdiction in the matter because it was lodged out of time.  The response also indicated that a new nomination application was being considered in relation to the applicant.

15. On 29 January 2019, the Tribunal wrote to the applicants advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicants to a hearing on 27 March 2019, to give evidence and present arguments. 

16. At the hearing, the Tribunal explained the requirements of cl.186.223.  And, the applicant indicated to the Tribunal that he understood the requirements for the visa.

17. The Tribunal also, pursuant to s.359AA of the Act, invited the applicant to comment or respond to information that his visa application was refused by the Department on 30 January 2018 because the nomination application lodged by his sponsoring employer, the Barrett Family Trust, was not approved; the decision not to approve the nomination application was made by the Department on 30 November 2017; and although the Barrett Family Trust did apply for a review of this refusal decision, on 14 March 2018, the Tribunal (differently constituted) found it had no jurisdiction in relation to the nomination application because it was lodged out of time.  The Tribunal indicated that this information was relevant because it may be the reason or part of the reason for affirming the decision of the Department under review, because cl.186.223 requires that the nomination was approved by the Minister and that the nomination has not subsequently been withdrawn.

18. The applicant, by way of response, indicated to the Tribunal that his representative believed the nomination refusal decision was defective because it “didn’t have a date on it”, and therefore should be re-issued by the Department.  He went on to indicate that his representative had requested the Department to reissue the decision record in respect of the nomination application, as well as lodged a complaint with the Ombudsman in respect of the Department’s inaction in reissuing the decision record correctly.  The applicant indicated that the Department had not reissued the nomination decision record, and they were still awaiting an outcome from the Ombudsman.  The Tribunal was also told that the representative had  lodged another review application in respect of the nomination refusal.  The Tribunal was urged to await the “re-assessment” of this second review application, before making its decision on the current review.

19. The applicant’s representative submitted to the Tribunal that he maintained his view that the applicant’s prospective employer had not been correctly notified of the refusal to grant a nomination by the Department; he understood that the prescribed time in which to apply for a review of the decision did not apply because the notice was defective, and therefore he did not agree with the Tribunal’s finding in March 2018 that it had no jurisdiction in respect of the matter; and that he had lodged a second review application and paid the required fee to the Tribunal the day before the applicant’s hearing.  Notwithstanding the acknowledgment from the representative that the subsequent review application is a duplicate review application in relation to the nomination refusal being lodged, the Tribunal was asked to wait until this second review was completed before it made its decision in respect of the applicant’s visa refusal review.

20. The Tribunal discussed with the applicant and his representative that because the decision not to approve the nomination in relation to the applicant had been refused by the Department in November 2017, a determination had already been made on 14 May 2018 that the Tribunal had no jurisdiction to review the nomination refusal decision, and the duplicate review of the nomination application would likely be deemed invalid by the Tribunal, it seems the legal requirements cannot be met by the applicant and it is likely the Tribunal would affirm the decision under review.  The Tribunal also noted its concerns as to the timing of lodging a second review application in respect of the nomination application.

21. The Tribunal has power in s.363(1)(b) of the Act to adjourn a review. It also has, as its statutory objective, providing a mechanism for review that : is accessible, fair, just, economical, informal and quick as well as proportionate to the importance and complexity of the matter; and, promotes public trust and confidence in the decision making of the Tribunal: s.2A Administrative Appeals Tribunal Act 1975.  In this case, the Tribunal considered whether it should adjourn the review to allow the applicant additional time in which to provide further evidence to support his review application.  There is no obligation on the Tribunal to delay its decision making, merely because an applicant wishes to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet relevant statutory criterion:  Huo v MIMA [2002] FCA 617; Manna v MIMC [2012] FMCA 28. In this regard, the Tribunal considered: whether, in the circumstances of this case, evidence that the applicant meets cl.186.223 by having an approved nomination is likely to be forthcoming; whether he has had a fair opportunity to provide the relevant information; and, the significance of the information to him.

22. In its acknowledgment letter of 14 February 2018, the Tribunal invited the applicant to provide material or written arguments in support of his review application.  Further, in its written invitation of 29 January 2019 to attend the hearing, the Tribunal noted it had been unable to make favourable decision on material before it and invited the applicant to provide any additional documents or information they wished to rely on during the hearing.  No additional information or documentation was provided.  It is clear to the Tribunal, that based on the applicant’s oral evidence and his representative’s submissions, it is unlikely the applicant will be able to provide evidence that he is the subject of an approved business nomination, as required by cl.186.223(2).  Having regard to all of the circumstances of this case, the Tribunal considers that the applicant has had sufficient time to take steps to satisfy the criteria, and additionally, it is unlikely that his nominating sponsor will obtain the nomination approval to support the applicant’s visa application.  The Tribunal does not consider it appropriate, in the circumstances of this case, to postpone making its decision.

23. On the basis of the evidence before it, the Tribunal finds that at the time the applicant lodged his visa application on 29 June 2017, he was the subject of a nomination application by the Barrett Family Trust, for the position of Welder (First Class).  The Tribunal finds that the nomination application by the Barrett Family Trust was refused by the Department on 30 November 2017.  The Tribunal further finds that although this refusal decision was the subject of an application for review to this Tribunal, the case was finalised on 14 March 2018 on the basis that the Tribunal had no jurisdiction in respect of the matter.

24. Accordingly, the Tribunal finds that the nomination made by the applicant’s proposed employer has not been approved.

25. Therefore, cl.186.223 is not met.

26. The applicant 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 streams. 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

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

    Nicola Findson
    Member

    
    

    ATTACHMENT A

    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.