Tsukahara (Migration)

[2019] AATA 3807

Tsukahara (Migration) [2019] AATA 3807 (28 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Keisuke Tsukahara
Ms Nozomi Tsukahara

CASE NUMBER:  1725233

DIBP REFERENCE(S):  BCC2017/2331995

MEMBER:Ian Berry

DATE:28 June 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 28 June 2019 at 1:34pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – subject of an approved nomination – request to delay decision – intention to lodge Federal Circuit Court appeal – details of appeal unknown to the Tribunal – indefinite adjournment of decision declined – failure to attend schedule hearing – 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 for review of a decision made by a delegate of the Minister for Immigration on 26 September 2017 to refuse to grant the visa applicant (‘applicant’) an Employer Nomination (Permanent) Subclass 186 visa under s.65 of the Migration Act 1958 (‘Act’), in the Direct Entry stream.

2. The applicant applied for the visa on 30 June 2017. On 26 September 2017, the delegate refused to grant the visa on the basis that he did not have an approved nomination as required by cl.186.223. The applicant provided to the Tribunal, the delegate’s decision made on 26 September 2017.

3. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant had an approved nomination which has not been subsequently withdrawn.

6. The applicant is a cook with nominator Naiban Australia Pty Ltd as trustee for the Halu family trust (‘nominator’). On 22 May 2019, the Tribunal affirmed the decision under review to refuse that nomination.

7. On 24 May 2019, the Tribunal wrote to the applicant, and the second named applicant, providing information to them which information may be a reason or part of reason for affirming the delegate’s decision on 26 September 2017 (‘section 359A letter’). That information is set out hereunder:

   The particulars of the information are:

   Information before the Tribunal indicated that you do not have an approved business nomination. The applicant for approval of a business nomination made by Naiban Australia Pty Ltd as trustee for the Halu Family Trust was refused by the Department on 26 September 2017 and affirmed by the Tribunal on 23 May 2019.

   If you are not the subject of an approved nomination by an approved sponsor at the time of the Tribunal’s decision, the Tribunal may find you do not meet cl.186.223(2). If the Tribunal finds you do not meet any of the remaining subclauses in cl.186.223, the Tribunal must affirm the decision to grant you an Employer Nomination (permanent) visa

   You are invited to give comments on or respond to the above information in writing.

   Your comments or response should be received by 7 June 2019...

8. The letter was emailed to the applicants’ migration agent on 24 May 2019. The applicant and the second named applicant did respond to the Tribunal’s letter in the following terms:

   ‘I refer to your email dated 24 May 2019.

   I have been advised by the nominator that they intend to lodge a FCC appeal.

   In relation to the visa applicant Mr Tsukahara, I note that the AAT is unable to set-aside the DOHA’s decision as there is no approved nomination.

   Can I request that the member considers not making a decision in this matter until the Federal Court makes its decision on the appeal to it?

   Such action would mean that an additional appeal to the Federal Court would be unnecessary should the decision by the Federal Court on the Nomination be positive.

   I believe that it is within the AAT members powers to allow such a request.

   Kind Regards

   Koji Matsuoka’

9. As stated above, the applicant has requested that the Tribunal delay the decision in this matter pending an appeal relating to the nomination. The details of the nomination appeal, are unknown to this Tribunal. If an appeal has been made to another court, the tribunal is not in a position to indefinitely allow a decision to wait pending the appeal, as it may be withdrawn, dismissed or otherwise not proceed in circumstances where the Tribunal is not in a position to ascertain as to that status.

10. On 13 June 2019, the Tribunal set this matter for hearing. On 18 June 2019, in response to the Tribunal’s letter advising of its intention to proceed to a hearing, the applicant advised of his intention not to attend a hearing and for the Tribunal to make a decision. However, as the hearing invitation had been made and sent, the applicant did not attend the hearing.

11. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream. No claims have been made in respect of other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

12. The second named applicant applied for the visa on the basis of being a member of the family unit of the applicant. There is nothing before the Tribunal to suggest that the applicant meets the primary requirements for the visa. As the applicant does not meet the requirements for the grant of the visa, the Tribunal must also affirm the decision in respect of the second named applicant.

    DECISION

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

    Ian Berry
    Member