Tuck (Migration)

[2022] AATA 3450

Tuck (Migration) [2022] AATA 3450 (4 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr David James Tuck
Ms Rebekka Karrina Foster

REPRESENTATIVE:  Mrs Simone Louise Kearney (MARN: 1173899)

CASE NUMBER:  1912727

HOME AFFAIRS REFERENCE(S):          BCC2018/2051706

MEMBER:Karen McNamara

DATE:4 October 2022

PLACE OF DECISION:  Sydney

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

Statement made on 04 October 2022 at 9:04am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – building and engineering technician – subject of approved position nomination – refusal of related nomination application affirmed on review – no response to tribunal’s invitation to comment –member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223(2), 186.311

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Kaur v MIBP [2014] FCA 915
Manna v MIAC [2012] FMCA 28
MIAC v Li [2013] HCA 18
MIBP v Singh [2014] FCAFC 1

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 18 May 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 11 May 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 (Cth) (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 Mr David James Tuck (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Building and Engineering Technicians nec (ANZSCO 312999).

5. The decision record provided to the Tribunal, records that the delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, which required Mr David James Tuck to be the subject of an approved nomination. The delegate found that the nomination lodged by Briteway Australia Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration and Border Protection on 29 March 2019.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 186.223(2) was not met and therefore the applicant did not meet cl.186.223 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant, Ms Rebekka Karrina Foster could not be granted a Subclass 186 visa, as she did not meet the secondary visa criterion (cl.186.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

8. The applicants lodged an application for review with the Tribunal on 22 May 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

9. The applicants were represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.186.223 of Schedule 2 to the Regulations.

    Nomination of a position

12. 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.

13. 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 reg 1.13A and reg 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.

14. On 7 September 2022, the Tribunal invited the review applicants under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal on 11 October 2022 at 10:00 am. The Tribunal notes that at the time of this decision the applicants have not responded to this invitation.

15. On 12 September 2022, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. 

16. The information related to information before the Tribunal that shows on 28 March 2022, the Tribunal affirmed the Department’s decision not to approve the nomination in relation to the first named applicant made by the nominating employer Briteway Australia Pty Ltd.

17. The Tribunal’s letter of 12 September 2022 noted that this information is relevant because the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister (cl.186.223(2)). The letter further stated:

    ‘  If the Tribunal relies on this information, it may find that the nomination in relation to

    you has not been approved and consequently the decision under review would be
    affirmed.

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

    Your comments or response should be received by 26 September 2022. If the comments or response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 26 September 2022, you may ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 26 September 2022, and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    An invitation to attend a scheduled hearing was sent to you on 7 September 2022. Please note, however, that if you do not respond to this letter within the date specified or within any extended timeframe, you may lose your right to attend the scheduled hearing and it will be cancelled. The Tribunal may then proceed to make a decision on the review without taking any further action to obtain your views on the information.’

18. The invitation to comment/respond was sent to the authorised recipient at the last email address provided in connection with the review and advised as stated above, if the comments/response were not provided in writing by 26 September 2022, the Tribunal may make a decision on the review without taking further steps to obtain the applicants’ comments and the review applicants would lose any entitlement they may otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

19. As at the time of this decision, the review applicants have not provided the comments or a response within the prescribed period and no extension has been sought or 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. Accordingly, the applicants have lost the right to appear before the Tribunal to give evidence and present arguments relating to this review application.

20. The Tribunal has carefully considered whether to afford additional time to the applicants to provide comment as requested in the s.359(a) invitation, or to provide further material in support of their application for review.

21. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

22. The Tribunal is satisfied that the invitation to provide comment was sent to the correct email address. The invitation was not returned to sender as undeliverable mail. At the time of this decision, the applicants have not provided comment, or a response and the applicants have not made contact with the Tribunal to indicate that a response is forthcoming.

23. The Tribunal has also taken into account the fact that the implications of not providing the comments/response as requested in the invitation from the Tribunal, were set out in the Tribunal’s letter of 12 September 2022.

24. In the circumstances, the Tribunal has decided to proceed to make its decision on the available evidence without taking further steps to obtain the applicants’ comments.

25. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.186.223(2) of Schedule 2 to the Regulations.

26. As the applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 of Schedule 2 to the Regulations is not met.

27. There is no evidence before the Tribunal to indicate that the secondary applicant meets the primary requirements for grant of the visa.

28. As the first named applicant is found not to have met the prescribed criteria for a subclass 186 visa, the second named applicant Ms Rebekka Karrina Foster as a member of Mr David James Tuck’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.186.311.

29. The applicants have 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

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

    Karen McNamara
    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.