SCIEGHI (Migration)

[2023] AATA 3151

SCIEGHI (Migration) [2023] AATA 3151 (28 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Alex SCIEGHI
Mrs Ting-Hsin Hsieh

REPRESENTATIVE:  Mr Malek Fadi (MARN: 0848702)

CASE NUMBER:  2100541

HOME AFFAIRS REFERENCE(S):          BCC2018/5167854

MEMBER:Namoi Dougall

DATE:28 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 28 September 2023 at 12:54pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – labour agreement stream – skilled meat worker – subject of approved position nomination – related nomination application refused and application for review withdrawn – no response to invitation to comment – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 363(1)(b),
Migration Regulations 1994 (Cth), Schedule 2, cls 186.242, 186.311
Administrative Appeals Tribunal Act 1975 (Cth), s 2A

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 13 January 2021 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 20 November 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 labour Agreement stream, to work in the nominated position of Skilled Meat Worker.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.242 of Schedule 2 to the Regulations because the position to which the application relates was not the subject of an approved nomination.

6. On 31 August 2023, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting the applicants to comment on or respond to adverse information. The adverse information was that the applicant had applied for the Subclass 186 visa on the basis of a nomination of a position made by the nominating buisness and that on 16 October 2020 the Department had refused that nomination. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination and on 30 August 2023 the Tribunal finalised the review as a withdrawn.

7. The Tribunal also informed the applicant in the letter that if the Tribunal did not receive his comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information. Further, the Tribunal’s letter also informed the applicant that he would also lose any entitlement you might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The Tribunal has power in s.363(1)(b) of the Act to adjourn a review. It also has, as its statutory objective, to provide a mechanism of 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. It has been nearly 5 years since the visa application was lodged and 2.5 years since the delegate’s decision and, in light of these timeframes, and that the applicant cannot meet requirements of 186.242, the Tribunal will not defer making its decision.

9. The applicant did not respond to the Tribunal’s invitation of 31 August 2023.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the criteria in cl.186.242.

Nomination of a position

1. Clause 186.242 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the visa application relates to a position, as identified in that application, which is either nominated by the employer in accordance with a current labour agreement or, where the nomination was made on or after 18 March 2018, is nominated in the Labour Agreement stream and which identifies the visa applicant in relation to that position.

2. In addition, this criterion also requires that:

   ·if the related nomination was made before 18 March 2018, the labour agreement requirements relating to the application have been met

   ·the nomination has been approved and not subsequently withdrawn

   ·there is no ‘adverse information’ known to Immigration about the employer who made the nomination or a person ‘associated with’ that employer (within the meaning of reg 1.13A or reg 1.13B); or it is reasonable to disregard any such information

   ·the position is still available to the applicant, and

   ·the terms and conditions of employment will be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work in the same place.

3. On 16 October 2020, the nomination application lodged by the nominating buisness under the Employment Nomination Scheme was refused by the Department on the basis that at the time there was no Labour Agreement between the applicant and the Department in effect.

4. The Department on 16 October 2020, refused the nomination application lodged by the nominating business and the Tribunal finalised the review of the delegate’s decision as withdrawn on 30 August 2023. Therefore, there is no approved nomination and the primary applicant does not meet cl.186.242.

5. As the primary applicant is found not to have met the prescribed criteria for a subclass 186 visa, the secondary applicant as a member of the applicant’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the secondary applicant named, does not satisfy cl.186.311.

6. The applicants have 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

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

Namoi Dougall
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.