Sikander (Migration)

[2020] AATA 4548

Sikander (Migration) [2020] AATA 4548 (20 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sultan Sikander

CASE NUMBER:  1908037

HOME AFFAIRS REFERENCE(S):          BCC2017/537050

MEMBER:Phoebe Dunn

DATE:20 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 20 October 2020 at 9:24am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 February 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the related nomination application by WA Traders Pty Ltd (the nominator), being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister on 19 February 2019 and as such there was no approved nomination.

6. The nominator applied for review of the decision to refuse the nomination application and on 1 September 2020 the Tribunal affirmed the decision of the delegate.

7. By letter dated 3 September 2020, the Tribunal wrote to the applicant in accordance with the requirements of s.359A of the Act, inviting the applicant to comment on or respond to information that the Tribunal believed, subject to any comments or response, would be the reason or part of the reason for affirming the decision under review.  The Tribunal outlined the particulars of the information and explained the relevance of the information and the consequences of the Tribunal relying on the information. 

8. In its letter, which was sent to the last address provided in connection with the review, the Tribunal noted that the related nomination application had been affirmed on review by the Tribunal on 1 September 2020 and this meant that the nomination had not been approved as required under cl.187.233(3) of the Regulations. The Tribunal stated that this information was relevant to the review because it is a requirement for the grant of a Subclass 187 visa that the related nomination application identified in the applicant’s Subclass 187 visa application had been approved.  The Tribunal stated further that if the Tribunal relied on this information in making its decision it may find that the applicant is not the subject of an approved nomination and this would mean that the applicant does not satisfy the requirements for the grant of a Subclass 187 visa in cl.187.233(3) and that the Tribunal must affirm the decision under review.

9. In its letter, the Tribunal invited the applicant to comment on or respond to the information in writing, or to seek an extension of time within which to do so, by 17 September 2020, noting that if the comments or response was not received by the stated date or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s view on the information and that the applicant would lose any entitlement he may have under the Act to appear before the tribunal to give evidence and present arguments.  No response was received from the applicant within the stipulated timeframe.

10. The Courts have confirmed that where an applicant fails to provide the requested comments or information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.[1]  Accordingly, as the applicant failed to comment on or respond to the information within the prescribed period, he has lost any right to appear before the Tribunal to give evidence and present arguments relating to the review application.

    [1] Singh v Minister for Immigration and Border Protection [2014] FCCA 1403, 32–39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40

11. On 5 October 2020, the Tribunal wrote to the applicant noting that as the applicant failed to respond to the Tribunal’s letter dated 3 September 2020 and no request for an extension of time within which to comment or respond was received, the applicant had lost his right to appear before the Tribunal to give evidence and present arguments.  The Tribunal advised that the Tribunal would not be making a decision on the case until 19 October 2020 and advised the applicant that he could provide any information or documents in support of his case, including commenting on or responding to the adverse information set out in the letter of 3 September 2020, by 19 October 2020.  The applicant did not respond to the Tribunal’s letter and no further correspondence or submissions have been received.

12. The Tribunal has considered whether it should exercise its discretion under s.359C(2) of the Act to take any further steps to obtain a comment or response from the applicant. The Tribunal has also considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to comment or respond. 

13. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[4] regarding the application of the principles of reasonableness when exercising its discretion, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[6] where analogous issues were discussed.

    [2] [2002] FCA 617

    [3] [2012] FMCA 28

    [4] [2013] HCA 18 (8 May 2013)

    [5] [2014] FCAFC 1 (4 February 2014)

    [6] [2014] FCA 915 (28 August 2014)

14. The Tribunal considered whether, in the circumstances of this case, the applicant has had a fair opportunity to comment on or respond to the adverse information that there is no approved nomination and the significance of the adverse information to the applicant.

15. In these circumstances, the Tribunal considers that the applicant has had a fair opportunity to comment on or respond to the adverse information that there is no approved nomination, and no comment or response has been forthcoming.  In these circumstances, the Tribunal has decided to make a decision on the review without taking further action to obtain the applicant’s views on the information in accordance with s.359C(2) of the Act, or to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

18. Clause 187.233 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, located in regional Australia. 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 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.

20. On 19 February 2019, a delegate of the Minister refused the related nomination application nominating the applicant in the nominated position, being the nomination referred to in cl.187.233(1) and on 1 September 2020 the Tribunal affirmed that decision on review. This means that the nomination has not been approved as required under cl.187.233(3) of Schedule 2 to the Regulations. After careful consideration of the material before it, the Tribunal finds that cl.187.233(3) is not met.

21. Therefore, cl.187.233 is not met.

22. The applicant has only sought to satisfy the criteria for a Subclass 187 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

23. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Phoebe Dunn
    Member

    
    

    ATTACHMENT A

    187.233(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:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(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 no more than 6 months after the Minister approved the nomination.