SONG (Migration)

[2020] AATA 2353

SONG (Migration) [2020] AATA 2353 (19 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss HUAN SONG

CASE NUMBER:  1923206

HOME AFFAIRS REFERENCE(S):          BCC2018/5484989

MEMBER:Alan McMurran

DATE:19 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 19 June 2020 at 2:57pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Fashion Designer – subject of an approved nomination – request for extension of time ­– decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 22 August 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 7 August 2019 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, a 29-year-old citizen of the People’s Republic of China, applied for the visa on 6 December 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 (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 Fashion Designer 232311.

   Nomination refusal

5. On 7 June 2019, by the delegate, the Minister refused the nomination application by Young Mi Shop Pty Ltd for employment of the applicant as a fashion designer.

6. On 7 August 2019, the delegate refused the applicant’s visa application because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, as the applicant was not the subject of a nomination that the Minister has approved.

7. On the available information, the refusal of the nomination was not the subject of any further review.

   History of this application

8. The Tribunal sent a letter to the applicant on 12 May 2020 inviting the applicant to respond to information that the applicant was not the subject of an approved nomination, and which would be the reason or part of the reason for affirming the Department’s decision under review. The applicant was requested to respond by 26 May 2020, failing which the applicant would lose any right to a hearing to present arguments and/or make submissions.

9. On 26 May 2020, a representative for the applicant, Nelson Shi, responded on her behalf. The representative requested “an extension of another 4 weeks to respond to its comment invitation so that she can have sufficient time to explore legal issues around her case with her lawyers”.

10. On 27 May 2020, the Tribunal responded to the representative and sought reasons, other than for the change of representative, to consider the extension request.

11. On 27 May 2020, the representative replied stating:

    “I have discussed all issues around her case after I was engaged, including the prospect of the current case with the tribunal and the opportunity of her future Federal Court if she loses her tribunal case. I advised her that she needed to engage a barrister to represent her in Federal Court. She is thinking of engaging a barrister now for her tribunal case if she has to engage a barrister for Federal Court in the future. I am referring barristers to her for her to choose and arranging appointments for her. The barristers are not readily available. They may give her a time in two weeks and take another one week to think about the case before they get back to her. That's why she needs four weeks. But this is only her request. The tribunal can grant her a length of extension according to the agenda of the presiding member, but the longer the better.

12. On 28 May 2020, the Tribunal responded and refused the extension of time request, informing the representative that in the Tribunal’s view, no adequate reasons had been provided, and that without an approved nomination, the visa application could not succeed.

13. On 29 May 2020, the representative replied and asked the Tribunal to re-consider the extension of time request, asking for a further two weeks. The representative complained the Tribunal should consider the request “out of the principle of fair processing” and for “procedural fairness”.

14. On 1 June 2020, the Tribunal responded and provided an extension to Friday, 5 June 2020.

15. On 3 June 2020, the representative informed the Tribunal he was no longer acting and withdrew.

16. On 4 June 202, the applicant provided the Tribunal with her personal contact details.

17. On 5 June 2020, the applicant responded to the Tribunal’s request of 12 May 2020, stating:

    “The following is my response to your letter:

    1.I didn’t know that the tribunal had determined that it had no jurisdiction of my nomination application until 25/05/2020.

    2.As I advised the tribunal before that I had engaged Hannah to represent me for review applications of nomination and visa. However she obviously did not do her job properly and failed to advise me of the tribunal’s correspondence to me in time.

    3.Yesterday I requested her to send me a copy of your decision on my nomination application. But she said that letter was sent to my employer instead of her, which I don’t believe. It seems to me that she doesn’t want me to read the contents of your decision on my nomination application.

    I want to obtain a copy of my nomination application from the tribunal through my employer. I feel I cannot respond to your letter of 12/05/2020 properly until I learn the contents of my tribunal nomination file and the tribunal’s decision on my nomination application.”

18. On 9 June 2020, the Tribunal replied, informing the applicant that “the employer made an application to the Department of Home Affairs on 4 December 2018, which was considered and ultimately refused on 7 June 2019 for the reason that the nominator did not establish that there was a genuine need to employ you as the nominee.” The Tribunal also informed the applicant that on the available information, the nominator/employer was deregistered and no longer trading. The Tribunal then provided the applicant a further extension of time to 12 June 2020 for her response to that information.

19. On 12 June 2020, the Tribunal received a request from a new representative, Mr Paul Murphy, and was advised of his appointment of the same date. Mr Murphy requested a further extension beyond Friday 12 June 2020, if he could not respond in time, as he was only just aware the application was a review of the applicant’s refused visa.

20. On 12 June 2020, the Tribunal replied, setting out the history since 12 May 2020, and advising that “On the available information, no further extensions are warranted.”

    On 12 June 2020, at 4.34pm, the applicant responded herself to the Tribunal stating “I appreciate that the tribunal let me know the reason of no jurisdiction on my nomination application. I would like the tribunal to make a decision my visa application according to the law. Thank you for time and patience.”

21. No further time extensions or responses have been received by the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has approved.  

24. The Tribunal has had regard to the Tribunal’s case file, the Department’s electronic file and the correspondence referred to above during the processing of this review.

    Nomination of a position

25. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision.

26. 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.

27. 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.

    Findings

28. The Tribunal finds that the nomination of the applicant for the position of fashion designer was refused by the Minister’s delegate on 7 June 2019. The Tribunal is satisfied on the available information that the applicant is not the subject of a nomination which the Minister has approved.

29. The Tribunal further finds there is no outstanding review application of the nomination decision, or any further nomination in respect of the applicant as a nominee, and which is awaiting determination.

30. The Tribunal finds therefore that cl.186.223 is not met.

31. 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

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

    Alan McMurran
    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.