Saito (Migration)

[2020] AATA 226

Saito (Migration) [2020] AATA 226 (30 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bugi Saito

CASE NUMBER:  1803002

HOME AFFAIRS REFERENCE(S):           BCC2017/2338460

MEMBER:Terrence Baxter

DATE:30 January 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 30 January 2020 at 12:06pm

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to appear before the Tribunal – subject of an approved nomination – nomination application refused – review application withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363, 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 Home Affairs on 17 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 30 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 Cook.

5. The delegate refused to grant the visa on 17 January 2018 because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations which required him to be the subject of an approved nomination. The delegate found that the nomination lodged by Naiban Australia Pty Ltd as trustee for the Halu Family Trust (the nominator) was refused on 11 August 2017 and that accordingly the applicant did not satisfy cl.186.223(2) and did not meet cl.186.223 as a whole as required.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 5 February 2018.

7. The nominator lodged an application for review of the delegate’s decision to refuse the nomination with the Tribunal on 31 August 2017. The nominator withdrew the application for review of that decision on 6 January 2020.

8. On 13 January 2020, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting him to comment or respond to information which the Tribunal considered would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review. The Tribunal’s letter stated as follows:

   ·Department of Home Affairs (previously the Department of Immigration and Border Protection) (the Department) records indicate that, on 30 June 2017, Naiban Australia Pty Ltd ATF Halu Family Trust lodged an application for approval of an employer nomination in the Temporary Residence Transition Nomination (TRTN) stream under subregulation 5.19(5) of the Migration Regulations 1994 (the Regulations). This application identified the nominated person as Bugi Saito.

   ·On 11 August 2017, the Department refused the employer nomination application lodged by Naiban Australia Pty Ltd ATF Halu Family Trust.

   ·An application to review this decision was made to the Tribunal by Naiban Australia Pty Ltd ATF Halu Family Trust on 31 August 2017.

   ·On 6 January 2020, Naiban Australia Pty Ltd ATF Halu Family Trust withdrew their application for review.

   ·As a result there is no evidence as at the date of this letter that the nomination application lodged by Naiban Australia Pty Ltd ATF Halu Family Trust in favour of Bugi Saito has been approved.

   ·There is also no evidence before the Tribunal that Naiban Australia Pty Ltd ATF Halu Family Trust has a current pending application for approval of a nomination in the Temporary Residence Transition stream under subregulation 5.19(3) identifying Bugi Saito as the nominated person.

   The above information is relevant to the review because it suggests that Bugi Saito as the primary visa applicant does have not an approved nomination as required by
   clause 186.223(2) of Schedule 2 to the Regulations, one of the criteria for the visa to
   be granted to Bugi Saito as the primary visa applicant. Further there is no evidence to suggest that Bugi Saito alternatively meets the requirements in clause186.233 under the Direct Entry Stream or clause 186.242 under the Agreement Stream.

   If we rely on this information in making our decision, we may find that you do not meet the requirements of cl. 186.223(2) of Schedule 2 to the Regulations at the time of the Tribunal’s decision because the Minister has not approved the nomination lodged by Naiban Australia Pty Ltd ATF Halu Family Trust as required by that subclause.

   You are invited to give comments on or respond to the above information in writing.

   Your comments or response should be received by 28 January 2020.

9. The Tribunal is satisfied that the invitation of 13 January 2020 was properly dispatched to the applicant’s email address. The applicant failed to comment on or respond to the invitation within the prescribed time for commenting on or responding to the invitation. No comment on or response to that invitation has ever been received by the Tribunal.

10. Where a review applicant is invited to comment on or respond to information in accordance with s.359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to s.359C(2) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal, in accordance with s.360(3) of the Act. Of note, 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 review applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

11. The Tribunal has considered whether it should take further action to obtain the applicant’s views on the information referred to in paragraph 8 above. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicant has been aware since 17 January 2018 of the reasons for the visa application being refused, and also that, after the application for review had been lodged with the Tribunal on 5 February 2018, the Tribunal wrote to the applicant on 7 February 2018 advising him that if he wished to provide material or written arguments, he should do so as soon as possible. The Tribunal also notes that the implications of not providing the information requested in the invitation from the Tribunal of 13 January 2020 were set out in that correspondence.

12. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicant’s views on the information referred to in the notification of 13 January 2020 or to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that he meets the relevant criteria under cl.186.223 of Schedule 2 to the Regulations.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

16. 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.

17. 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.

18. The Tribunal notes that the application for nomination for the position of Cook has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application.

19. Therefore, cl.186.223 is not met.

20. 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

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

    Terrence Baxter
    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.