SONG (Migration)

[2018] AATA 3896

SONG (Migration) [2018] AATA 3896 (13 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chong SONG
Ms Ping YAN

CASE NUMBER:  1615900

HOME AFFAIRS REFERENCE(S):           BCC2015/2804623

MEMBER:R. Skaros

DATE:13 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 September 2018 at 11:02am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) – Subclass 186 (Employer Nomination Scheme) – direct entry stream – nominated position of a Marketing Specialist – Department refused nomination – Nominating employer withdrew review application to the Tribunal – Decision made on review – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360, 375A
Migration Regulations 1994 (Cth), Schedule 2 cl 186.233

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 Immigration and Border Protection on 21 September 2016 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 25 September 2015. 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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Marketing Specialist with First Legal Online Pty Ltd. 

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination of the position was not approved.

6. The applicants applied for review of the delegate’s decision and a copy of the decision record was provided to the Tribunal.

7. The Tribunal notes that the Department’s file includes a non-disclosure certificate under s.375A of the Act in respect of folios 19-24. The certificate indicates that disclosure of the information contained in the identified folios would be contrary to public interest because they contain system information, internal Departmental communication and include the full names of Department officers. The Tribunal has considered the certificate and the information covered by the certificate. Firstly, the Tribunal does not consider the certificate to be valid as it merely describes the documents covered by the certificate and does not provide a valid public interest reason for non-disclosure. The Tribunal also notes that the names of Department officers would, in any case, not be disclosed as such data would be protected by privacy legislation. Secondly, the documents appear to be screen printouts of the progress of the application as entered by various case officers on various dates and are not relevant to the issue in the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the nomination of the position has been approved.

   Nomination of a position

10. 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. In addition, this criterion also requires that the nomination has been approved.

11. The applicant applied for the visa on the basis of an employer nomination lodged by First Legal Online Pty Ltd (the associated nomination). The Tribunal is satisfied on the information before it that the associated nomination identified the applicant as the relevant Subclass 457 visa holder and that it was in reference to that nomination that the relevant declaration was made in the visa application, as required by cl.186.223(1).

12. Information in the decision record indicates that on 9 August 2016 the Department refused the associated nomination. On this basis, that the delegate proceeded to refuse the application for the visas. 

13. First Legal Online Pty Ltd applied for review of the delegate’s decision not to approve the associated nomination. However, on 25 June 2018, First Legal Online Pty Ltd requested to withdraw the application for review.

14. On 27 August 2018 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to nominator’s decision to withdraw the application for review of the Department’s decision not to approve the nomination of the position in relation to the applicant, which the Tribunal explained is relevant to the requirement in cl.186.223(2) which requires the associated nomination to be approved.

15. The invitation was sent to the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 10 September 2018 the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

16. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

17. The Tribunal is satisfied that the invitation to comment was correctly sent to the email address provided by the applicant in the review application form. The applicant has not informed the Tribunal of any changes to his email address. The Tribunal also notes that the email enclosing the invitation to comment has not been returned to sender as undeliverable. The Tribunal is satisfied that the applicant was properly informed that a non-response may result in the Tribunal proceeding to a decision on the information before it. Furthermore, since lodging the application for review, the applicant has not provided any further information to the Tribunal in support of his application. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

18. As the associated nomination has not been approved, it follows that the applicant does not meet the requirements of cl.186.223(2). Consequently, cl.186.223 has not been met as a whole.

19. 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.

20. The secondary applicant applied for the visa on the basis of being a member of the first named applicant’s family unit. The first named applicant does not meet the primary requirements for the visa and there is no evidence before the Tribunal to suggest that the secondary applicant meets the primary requirements for the visa. In the circumstances, the Tribunal must also affirm the decision in respect of the secondary applicant.

    DECISION

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

    R. Skaros
    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.