SOPONRATANAPOKIN (Migration)

[2019] AATA 2701

SOPONRATANAPOKIN (Migration) [2019] AATA 2701 (13 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Saran Soponratanapokin
Miss Orada Watdhanayotin
Miss Yadar Soponratanapokin

CASE NUMBER:  1811062

HOME AFFAIRS REFERENCE(S):           BCC2017/1231931

MEMBER:Katie Malyon

DATE:13 May 2019

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction in relation to the second named applicant or the third named applicant

Statement made on 13 May 2019 at 9:47 am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Chef – nomination refused – no review application lodged – new nomination not applicable to review application nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351 359, 360, 363
Migration Regulations (Cth) 1994, rr 1.13,5.19 1.15B, Schedule 1, para 1114B(3)(d),  Schedule 2, cls 186.223, 186.233

CASES
Hasran v MIAC [2010] FCAFC 40
Singh v MIBP [2017] FCAFC 105

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 3 April 2018 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 31 March 2017.  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 3 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 - Thai national Mr Saran Soponratanapokin - is seeking the visa in Temporary Residence Transition stream.

5. The delegate refused to grant the visas on the basis Mr Soponratanapokin did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination application made by his employer, Chat Thai Pty Ltd (the Company), was refused by the Department.  A copy of the delegate’s decision refusing the applicants’ subclass 186 visa application was provided to the Tribunal. 

   Background

6. Mr Soponratanapokin was nominated to fill the position of Chef ANZSCO 351311 with the Company.  However, the Company’s nomination was refused by the Department on 27 February 2018.  As a result, the Department refused the applicants’ Subclass 186 visa application.  The Company did not seek review of the delegate’s refusal of its nomination application. 

7. On 2 April 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse their Subclass 186 visa applications. The Tribunal informed the applicants the Company did not apply to the Tribunal for review of the Department’s decision to refuse its nomination application and, accordingly, there is currently no approved nomination by the Company in relation to Mr Soponratanapokin or the other applicants. As a result, the position to which their Subclass 186 visa application relates cannot meet the criteria in cl.186.223 of Schedule 2 to the Regulations.

8. In its s.359A letter, the Tribunal noted that, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105 (Singh’s case), this is a ‘once off’ process.  The Court observed in Singh’s case that even a new nomination in respect of the same position made by the same employer could not be relied upon to meet these to criteria because the new nomination would not be the one in relation to which the visa applicant made the declaration in their visa application regarding the related nomination and in relation to which the applicants provided the relevant transaction reference number for the related nomination. 

9. The Tribunal requested a response to its s.359A letter on or before 16 April 2019.  It noted that if a response or comments are not received within the period allowed, or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the applicants’ views on the information.  It also stated (in bold) “(Y)ou will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments”.  The Tribunal’s letter to the applicants will was sent to their representative’s email address [email protected] (amended for the purposes of this decision) as advised in the review application form lodged with the Tribunal.  No response was received from the applicants or their representative on before 16 April 2019. 

10. As the applicants have not provided any response to the Tribunal’s section s.359A letter within the time period prescribed, s.359C of the Act applies and , pursuant to s.360(3) of the Act, they 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

11. On 29 April 2019, the applicants’ representative sent to the Tribunal a copy of the Department’s approval of a nomination by the Company in relation to Mr Soponratanapokin for the role of Chef ANZSCO 351311. The Department’s approval notification dated 12 April 2019 confirms that the approval was transmitted on that day to the applicants’ representative email address referred to above at para [9]. Had the representative provided to the Tribunal on or before 16 April 2019 a copy of the delegate’s approval notification dated 12 April 2019, the applicants would have been invited to attend a hearing. However, for the reasons explained in Singh’s case referred to above and as set out in the Tribunal’s s.359A letter, approval of the Company’s later nomination application cannot favourably impact the outcome of the current application for review. If the matter had proceeded to a hearing, whilst the outcome would have been the same, the Tribunal would nonetheless have had an opportunity take evidence on whether this is an appropriate case to refer to the Minister under s.351 of the Act.

12. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

13. Clause 186.223 of Schedule 2 to the Regulations, 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 same one that was the subject of the declaration made by the visa applicant that is required to be made as part of the Subclass 186 visa application.

14. 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 of the Regulations), 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.

15. The Company’s nomination application identifying Mr Soponratanapokin as the nominee to fill the position of Chef with was refused by the Department. No review application was sought by the Company in relation to the delegate’s decision to refuse its nomination application. The applicants have failed to provide any response to, or comment on, this information when requested to do so by the Tribunal in its s.359A letter.

16. When the applicants lodged their Subclass 186 visa application, they indicated on the first page of their application the Company’s related nomination transaction reference number (TRN) of TRN EGOE9KT55.  In addition, Mr Soponratanapokin as the primary visa applicant made the declaration on page 14 of the applicants’ visa application that he has:

    “declared that the position to which the application relates is a position nominated under regulation 5.19 … by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection. (Note: This application will not be valid if the details provided cannot be matched to a nomination that has been lodged with the Department of Immigration and Border Protection.)”

17. As indicated in the text of the declaration, providing the TRN of the related nomination is essential for the purposes of lodging a valid visa application. This is consistent with the provisions of item 1114B(3)(d) of Schedule 1 to the Regulations which provides that an applicant seeking to satisfy the primary criteria must declare in the application that the position to which the application relates is a position nominated under r.5.19 of the Regulations. As noted in the Tribunal’s s.359A letter, the scheme is intended to be a “once-off” process so that the visa application is considered against a specific employer nomination: Singh v MIBP [2017] FCFCA 105, Mortimer J at [90]

18. In the circumstances, as the nomination application made by the Company for the position of Chef to which the applicants’ Subclass 186 visa application relates has not been approved, it follows that Mr Soponratanapokin cannot meet the criteria in cl.186.233(2) of Schedule 2 to the Regulations. Therefore, cl.186.233 of Schedule 2 to the Regulations is not met.

19. Mr Soponratanapokin 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. Having reviewed the records, it is evident that the second named applicant and the third named applicant were both offshore not only at the time of the visa application was lodged and the delegate’s decision was made in relation to the visa application but also at the time of lodgement of the review application.  In the circumstances, the Tribunal has no jurisdiction in relation to the second named applicant or the third named applicant. 

21. By way of final comment, the Tribunal notes that, as set out in the delegate’s approval of the ENS Nomination (Temporary Residence Transition) made by the Company for the position of Chef in respect of nominee Mr Soponratanapokin dated 12 April 2019, Mr Soponratanapokin “has 6 months from the date of the approval of (that) letter or before the expiry of their current visa (whichever is sooner) in which to lodge (a fresh) application for permanent residence”. 

    DECISION

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

23. The Tribunal has no jurisdiction in relation to the second named applicant or the third named applicant

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from the Migration Regulations 1994

    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.

    oOOo