Singh (Migration)

[2024] AATA 507

Singh (Migration) [2024] AATA 507 (6 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurlal Singh

REPRESENTATIVE:  Mr Guanheng Liang

CASE NUMBER:  2204618

HOME AFFAIRS REFERENCE(S):          BCC2020/1513020

MEMBER:Amanda Mendes Da Costa

DATE:6 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 6 March 2024 at 1.02pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Contract Administrator – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

CASES

Hasran v MIAC [2010] FCAFC 40
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 on 15 March 2022 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 May 2020. 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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Contract Administrator (ANZSCO 511111).

5. The delegate refused to grant the visa because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because he was not the subject of an approved nomination.

6. The applicant was represented in relation to the review.

7. On 19 February 2024 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting him to comment on or respond to information which the Tribunal considered (subject to his comments or response) be the reason or part of the reason for affirming the decision under review.

8. That information is:

   ·The application for approval of the nominated position made by B&E POULTRY HOLDINGS PTY LTD (the nominator) was refused by a delegate of the Minister for Immigration.  The nominator sought a review of that decision, but it was recently affirmed by the AAT.  This means that the nominator’s application for a nominated position has not been approved.

9. The Tribunal explained that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the applicant’s visa application is the subject of an approved nomination.

10. The Tribunal advised that if it relied on this information in making its decision it may find that the position specified in his visa application is not the subject of an approved nomination and this would mean that he doesn’t satisfy a requirement for the grant of the visa.  The Tribunal would then affirm the decision under review.

11. The applicant was requested to provide any comments or response (in writing) by 4 March 2024.

12. The invitation was sent to the applicant’s representative and advised that, if the comments or response were not provided in writing by 4 March 2024, the Tribunal may make a decision on the review without taking further steps to obtain his comments or response to the above information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

13. The applicant has not provided the comments or response within the prescribed period (or at all) and no extension has either been sought or granted.  In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal.  The effect off s.363A of the Act is that if an 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 information.

14. The applicant has not requested additional time to provide evidence and present arguments, relating to the review application.

15. 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 his application for review.

16. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] FMCA 28, 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 [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

17. The applicant has not provided the comments or response invited to be provided, within the prescribed period set for this purpose.

18. The Tribunal has taken into account the fact that the applicant has been aware since the delegate’s decision on 15 March 2022 of the reasons for the nomination application being refused. The Tribunal also notes that the implications of not providing the information requested in the invitation from the Tribunal were set out in the letter of 19 February 2024.

19. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to provide information addressing the central issues arising in the application for review, or in which to request an extension of time in order to provide that information but has not either provided the information or requested an extension of time. Accordingly, the Tribunal has decided not 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.

20. In making its decision the Tribunal has considered the information in both the applicant’s Departmental and Tribunal files.    

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in the present case is whether the applicant meets the criteria in cl 186.223 of Schedule 2 to the Regulations.

    Nomination of a position

23. 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.

24. 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 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.

25. Based on the evidence before it, the Tribunal is not satisfied that the applicant is the subject of an approved nomination and therefore finds that he does not meet the criteria in cl 186.223 of Schedule 2 to the Regulations.

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.

    Amanda Mendes Da Costa
    Member

    
    

    ATTACHMENT A

    186.223(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 Temporary Residence Transition stream; 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.