VIROJNAPA (Migration)

[2019] AATA 1952

VIROJNAPA (Migration) [2019] AATA 1952 (19 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Prangvalai VIROJNAPA
Mr Vasana JARATJASSADA

CASE NUMBER:  1817501

HOME AFFAIRS REFERENCE(S):           BCC2017/2205807

MEMBER:Jennifer Cripps Watts

DATE:19 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 19 February 2019 at 11:54am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent)(Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition Scheme – no review application was made by the nominator – request for postponement – evidence supplied did not support the claim –did not attend hearing – requirement cannot be satisfied by a later nomination – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 1 1114B(3)(d), Schedule 2 cls 185.223, 186.223, 186.233, 186.311, rr 1.13A, 1.13B

CASES

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 (the delegate) on 4 June 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 22 June 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 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.

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 refused, on 4 June 2018, and the applicant was not therefore the subject of an approved nomination.

6. On 14 June 2018 the applicant applied for Tribunal review, within time, and provided a copy of the delegate’s decision with their review application.  No review application was made by the nominator for refusal of the nomination relating to the position identifying the applicant in this matter. 

7. Correspondence has been sent by the Tribunal to the applicant’s authorised recipient and migration agent, Mr Leng How Phan, Migration Agent Registration Number 1570372.

8. On 6 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 20 December 2018.’

9. On 20 December 2018, Mr Phan wrote to the Tribunal seeking an extension of time to provide a response, because it is the ‘holiday period’.  He did not offer an explanation as to why no response had been received within the two weeks originally given, which was not in the holiday period, in the Tribunal’s view.  Nevertheless, he was given more time and advised in writing that he should provide a response by 7 January 2019.  No response to the 6 December 2018 request for information was received during the extended time period.

10. On 18 January 2019, the Tribunal sent an invitation in writing to the applicants to attend a scheduled hearing on 19 February 2019.  They were invited to attend and also to provide any additional documents they would like considered.  On 25 January 2019, the Tribunal received a response indicating that both applicants and the migration agent, Mr Phan, would be attending the Tribunal hearing on 19 February 2019. 

11. On Monday 18 February 2019, the Tribunal received a request for postponement on the basis that the applicant’s child was ill.  The applicant said she would not be able to attend her hearing on (Tuesday) 19 February 2019 for this reason.  Accompanying the postponement request was a medical certificate, from Dr Meng Kong Wan of Beverly Hills.  The information contained in the certificate indicates that it was completed on (Friday) 15 February 2019.  This is stated in the certificate:

    ‘THIS IS TO CERTIFY THAT

    Thanida Jaratjassada

    IS RECEIVING MEDICAL TREATMENT FROM 15/02/2019 TO 15/02/2019 inclusive.

    He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION/SCHOOLING.’

12. The postponement request came into the Tribunal electronic system at 3:03pm on Saturday 16 February 2019.  The Tribunal considered the evidence and the applicant was advised, in writing on the same day the postponement request was received (Monday 18 February 2019), that the postponement request was not granted because the evidence provided did not support the claim that the applicant could not attend her Tribunal hearing.  This was because the Tribunal was not satisfied that a certificate stating that Thanida Jaratjassada’s illness on Friday 15 February 2019 would affect the applicant’s ability to attend a Tribunal hearing four days later, on 19 February 2019.  

13. The Tribunal received no further correspondence from the applicant or the migration agent after they were advised the postponement was not granted.  The applicant did not attend her hearing.  No further request for postponement was received.  The Tribunal is satisfied that the applicant was properly invited to her hearing and, when a postponement request was made, that it was reasonable for the Tribunal to refuse the request on the supporting evidence she provided – the medical certificate.

14. The Tribunal has made requests in writing, on 6 December 2019 and again on 18 February 2019, for the applicant to provide information indicating she has an approved nomination or information indicating there is a pending application for review of a decision to refuse the nomination.  She has not provided any evidence of this kind, despite two written requests to do so.  The applicant did not attend her hearing to give oral evidence.

15. In the circumstances, the Tribunal has proceeded to a decision on the information before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

18. The applicant has been provided with opportunities to provide evidence that they satisfy the criteria for the grant of the visa and have not responded.  They did not attend their hearing to give oral evidence.

19. In reaching a decision, the Tribunal has had regard to the evidence before it, including relevant matters contained in the delegate’s decision.

    Nomination of a position

20. 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.

21. 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 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.

22. 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. 

23. On 24 April 2018, the nomination lodged by Centro Parking Pty Ltd (Centro), relating to the position and applicant in this matter, was refused.  On 16 May 2018 a second nomination application was made by Centro, after the applicant’s Subclass 186 visa application (which was lodged on 22 June 2017) was refused on the basis that the nomination relating to the application had also been refused.  There is no evidence before the Tribunal that Centro lodged a review application relating to the 24 April 2018 nomination refusal. 

    Can a new nomination be relied on?

24. It is a requirement for both the Temporary Residence Transition and Direct Entry streams (cl.186.223 and cl.186.233 respectively) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement cannot be satisfied by a later nomination made by a different employer, and on current authority a nomination in respect of the same position made by the same employer also cannot be relied on to meet these Schedule 2 criteria.

25. This was the view taken in Singh v MIBP [2017] FCAFC 105 which says, essentially, that even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.

26. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.186.223 unless there is also a review of that decision pending.  In this case, there is no review decision pending relating to the applicant’s visa refusal.

27. The Tribunal informed the applicant, on 6 December 2018, that it appeared she did not satisfy the criteria for the grant of the visa, specifically cl.186.223 as described above (as there was no review of the nomination refusal decision relating to the applicant’s Subclass 186 visa application pending).  No response was received.  She was reminded in writing, on 18 February 2019, that she should provide the information requested in the 6 December 2018 letter requesting information.  No documentary evidence was provided in response.  It is the Tribunal’s view that the applicant, in not attending her hearing, has waived her right to give oral evidence at the scheduled hearing.

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

29. 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

30. 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, Vasana Jaratjassada, 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 cannot meet criteria cl.186.311 and therefore does not meet the criteria for the grant of the visa.

    DECISION

    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.