TRAN (Migration)

[2019] AATA 2861

TRAN (Migration) [2019] AATA 2861 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr The Hien Tran
Ms Chuchu Hu

CASE NUMBER:  1711303

HOME AFFAIRS REFERENCE(S):           BCC2016/1690629

MEMBER:Jennifer Cripps Watts

DATE:26 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 February 2019 at 5:23pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager (ANZSCO 141111) – no approved nomination – nomination withdrawn after applicant charged with offence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 186.311, 186.223, rr 1.13A, 1.13B

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 (the delegate) on 24 May 2017 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 10 May 2016. 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 Café or Restaurant Manager (ANZSCO 141111).

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of Schedule 2 to the Regulations because the nomination relating to the applicant’s Subclass 186 visa application was withdrawn, on 4 June 2018, and the applicant was not therefore the subject of an approved nomination, meaning the secondary applicant was not a member of the family unit of someone who holds a Subclass 186 visa and she also did not meet the criteria: cl.186.311.

6. On 28 May 2017 the applicants applied for Tribunal review, within time, and provided a copy of the delegate’s decision with their review application.

7. Correspondence has been sent by the Tribunal to the applicant’s authorised representative, Mr Arun Garg, Migration Agent Registration Number 9794416.

8. On 4 December 2018, the Tribunal sent the applicant a ‘request for information’.  In the letter, this was included:

   ‘It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.

   Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.

   If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide evidence about this by 18 December 2018.’

9. On 18 December 2018, Mr Garg wrote to the Tribunal advising that the applicant would not be withdrawing their review application and that the applicant was looking forward to receiving a hearing invitation.  No additional documents were provided or any explanation at that time as to why no additional documents were provided relating to the applicant having an approved or nomination or review of a nomination refusal.

10. On 4 February 2019, the Tribunal sent an invitation in writing to the applicants to attend a scheduled hearing on 26 February 2019.  They were invited to attend and also to provide any additional documents they would like considered.  The Tribunal received a response from Mr Garg requesting that the hearing be moved from morning until afternoon on 26 February 2019 for health reasons.  The Tribunal considered the request and agreed to move the hearing until 2:00pm.  A letter was sent to Mr Garg on 12 February 2019 advising that the Tribunal would try to arrange for the applicant, who records showed to be incarcerated, to appear at his Tribunal hearing in person.  It was agreed, after the Tribunal made unsuccessful attempts to arrange for the applicant to appear in person, that he could appear by video from the Dawn de Loas Correctional Facility in Sydney.

11. The applicant appeared by video from the correctional centre and the migration agent attended by phone.  The secondary applicant elected, in writing, not to attend the hearing.  Documents on the Tribunal file indicate that Mr Garg was appointed authorised recipient and representative by the primary applicant on 10 May 2016 and by the secondary applicant on 25 March 2017.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is, essentially, whether the position identifying the applicant is the subject of the nomination relating to it that was lodged in 2017, before the applicant made the visa application. 

14. The applicant has been provided with opportunities to provide evidence that they satisfy the criteria for the grant of the visa and have not provided any documentary evidence indicating they meet the Subclass 186 criteria. 

15. The Tribunal has had regard to the evidence before it, including relevant matters contained in the delegate’s decision.

16. It was explained to the applicant at the beginning of the hearing that this is review of a decision to refuse his Subclass 186 visa because he does not have a nomination and there is no nomination refusal decision with review pending.  He said he understood.

    Nomination of a position

17. 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.

18. 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 nomination has not been withdrawn

    ·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.

19. The Temporary Residence Transition stream is for Subclass 457 visa holders and Subclass 482 holders who have worked for their employer for at least the last two or three years and whose employer wants to offer them a permanent position in that same occupation.  The nomination relating to the applicant’s Subclass 186 visa application was withdrawn on 16 February 2017.  

20. The Tribunal informed the applicant in writing, on 4 December 2018, that it appeared he did not satisfy the criteria for the grant of the visa, specifically cl.186.223 as described above (as the nomination had been refused and there was no review of the nomination refusal decision relating to the applicant’s Subclass 186 visa application made). 

21. Having considered all relevant facts and matters, on the evidence before it the Tribunal finds that the applicant does not meet cl.185.223.

22. 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.

23. Therefore, cl.186.223 is not met.

24. 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.

    Secondary applicant

25. A secondary applicant must be a member of the family unit of a person who satisfies the primary criteria for the grant of a Subclass 186 visa.  The Tribunal has made findings that the primary applicant does not meet cl.186.223 for the grant of the visa.  The secondary applicant made a combined application with the primary applicant.  However, there is no evidence before the Tribunal that the secondary applicant is a member of the family unit of a person who holds a Subclass 186 visa.  On this basis, the secondary applicant does not meet cl.186.311 and the decision to refuse her visa must also be affirmed.

    Other matters

26. The migration agent submitted in writing, and orally at the hearing, that the Tribunal should address a question ‘at point of law’ about the withdrawal of the nomination.  He submits that the nomination relating to the visa application was withdrawn because the Department put pressure on the nominator to withdraw the nomination after the applicant had been arrested and had his bridging visa cancelled, thereby compelling them to withdraw.  He submits that he is of the opinion that the Department can only make a decision to refuse a nomination and that they cannot compel an applicant to withdraw an application.  The Tribunal told him that the matter before it is review of the applicant’s Subclass 186 visa refusal, not the internal processes of the Department that it is claimed, in this case, resulted in the nomination being withdrawn.

27. It was explained to the applicant, and the migration agent was reminded, that to meet the criteria for the grant of the Subclass 186 visa, the position to which the application relates is the position nominated in the application for approval and that the nomination has not subsequently been withdrawn:  cl.186.223(3).  The nomination was withdrawn and there is no reviewable decision in respect of the nomination.

    Request for referral to the Minister for intervention on behalf of the secondary applicant

28. In written and oral submissions, the representative asked the Tribunal to recommend Ministerial intervention on behalf of the secondary applicant if the decision is affirmed.  The request included the following:

    ‘She does not want to attend hearing.  She is in new relationship … She works at Star Casino.  She deals with high Chinese rollers.  Her mother was not well.  She was granted BVB on 05 June 2018 and could not travel to China.  She was contacted by some Chinese Person and sought her help by showing pictures of Native Chinese persons and provide information.  Chinese person was aware Mr The Hien TRAN conviction for drug offences.  She declined and she is fearful of returning to China to lodge her subclass 309 application as well as attending the hearing.  Ms ChuChu HU request Hon. Member to refer her matter to Hon. Minister so that she can be granted a Visitor Visas (subclass 600) so that she can lodge an onshore spouse application.’

29. The Tribunal acknowledges the request and reasons given.  The applicant gave evidence that his (now) ex-partner, the secondary applicant, has been in a relationship with someone else since June 2018.  This is accepted, as her being in a new relationship was also referred to in the written submissions. 

30. Under the Ministerial guidelines, the Tribunal may refer a case to the Department if the Tribunal member believes there are issues involved that fall within the unique or exceptional circumstances described in section 4 of the guidelines.  The Tribunal has carefully considered the submissions but has decided not to make a specific recommendation of referral.  As there will be an appropriate existing decision in the applicants’ case from the Administration Appeals Tribunal (Migration and Refugee Division), the secondary applicant will be able to make a direct request to the Department for Ministerial intervention and have the request assessed against the Ministerial guidelines if she chooses to.

31. About two-thirds of the way through the hearing, the applicant said he did not wish to give further oral evidence with the migration agent present because he thought he was representing his ex-partner, not him.  The Tribunal clarified and is satisfied that the applicant wished not to be assisted by Mr Garg at the hearing.  After some discussion, the call with Mr Garg was disconnected and the applicant continued to give his evidence without Mr Garg present.  The applicant said he did not want Mr Garg or the secondary applicant to receive any more communication in his review matter.  It is a combined application and he was told that the secondary applicant is entitled to receive a copy of the decision.  The applicant said he wished to withdraw Mr Garg’s representation.  He was told that as soon as the Tribunal makes its decision, that will effectively happen anyway, as once the Tribunal decision is made the Tribunal has no more to do with his matter.  The applicant understood.  He was told that if he did not wish to have Mr Garg as his migration agent after the decision, that he may wish to consider finding a new migration agent to help him.

32. Earlier in the hearing Mr Garg had requested that notification of the Tribunal’s decision be sent by post, rather than email, because he said the applicant does not have access to email.  Mr Garg was asked if he himself has email, which it appears he does from communications with the Tribunal, and he confirmed at the hearing that he can receive emails.  After Mr Garg had left the hearing, the Tribunal confirmed with the applicant that he has access to email communications through corrective services.  He agreed to receive the decision by email.  The Tribunal has considered Mr Garg’s request that the decision be sent by post to both himself and the applicant and does not consider it necessary, particularly as the applicant has stated he would rather receive it by email. 

    DECISION

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

    Jennifer Cripps Watts
    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.