VO (Migration)

[2018] AATA 4859

VO (Migration) [2018] AATA 4859 (19 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PHUONG TRI VO

CASE NUMBER:  1701685

HOME AFFAIRS REFERENCE(S):           BCC2016/1552502

MEMBER:Mr S Norman

DATE:19 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 October 2018 at 9:35am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination (Permanent) – Subclass 186 Employer Nomination Scheme – nomination approval refused – no response for request of information from sponsor – applicant’s lack of response – knowledge of refusal – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C
Migration Regulations 1994 (Cth), Schedule 2 cl 186.223


CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCAFC 1
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2013] HCA 18

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 on 16 January 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 April 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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager (ANZSCO: 149212). The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination approval had been refused.

5. The Tribunal had (initially) invited the applicant to a hearing on 20 November 2018. That hearing was subsequently cancelled. That is because by s.359(2) letter of 18 September 2018, the Tribunal wrote to the nominating applicant’s authorised recipient and requested further information. The information requested included ‘information about the [nominating] applicant’s compliance with training commitments and [more particularly] sponsorship obligations’. The nominating applicant was also advised they must respond in writing by 2 October 2018. The applicant was also advised that if the Tribunal did not:

   …receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. The applicant will also lose any entitlement it might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.

6. As set out in the nominating applicant’s decision (AAT # 1621824), the nominating applicant did not respond to that request, and for the reasons set out in that decision, the Tribunal affirmed the decision to refuse the nomination approval request.

7. Furthermore, and for the reasons set out below, the present visa applicant has not been provided with a hearing to give evidence and submissions. The applicant was represented in relation to the review by his registered migration agent.[1]

   [1] The Tribunal notes the authorised recipient/agent’s registration had been cancelled. Therefore, a ‘cc’ copy of correspondence was also sent to the visa applicant. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is principally whether the applicant met cl.186.223 of Schedule 2 to the Regulations.

   Nomination of a position

10. 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.

11. 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.

12. On 26 April 2016, an application for an Employer Nomination Scheme (subclass 186) visa was lodged by the applicant in the Temporary Residence Transition Stream. This was for the purposes of his appointment as a Customer Service Manager (ANZSCO: 149212).

13. On 6 December 2016, the nomination approval application lodged by Phuong Vo Australia P/L (the nominator), and being the nomination referred to in cl.186.223(1), was refused by a delegate of the Minister for Immigration and Border Protection. By Department letter of 6 December 2016, the applicant was invited to comment on this information as it may be a reason for refusing his visa application. As at the date of the Department decision, no further evidence or submissions were lodged. The delegate then found the applicant had not met cl.186.223.

14. Next, the delegate assessed the application with other streams within this visa subclass. First the delegate considered the Direct Entry Stream. However, under cl.186.233(1)(a) the position to which a visa application relates must have been nominated and approved under r.5.19(4)(h)(i) or r.5.19(2) as in force. Since the correlating nomination only sought to meet the requirements of r.5.19(3), the applicant did not meet cl.186.233. Since that clause has not been met, the delegate was not satisfied the applicant met the criteria for a grant of an Employer Nomination Scheme (subclass 186) visa in the Direct Entry Stream.

15. Next, the delegate also assessed whether the application met the criteria in the Agreement Stream. However, as the correlating position was not nominated by an employee in accordance with a Labour agreement, the applicant was not found to meet the requirements of cl.186.242, and the criteria in the Agreement Stream was not met.

16. Next, as clauses 186,223, 186.233 & 186.242 were not satisfied, the delegate refused to grant the Employer Nomination Scheme (subclass 186) visa.

17. By s.359A letter of 4 October 2018 (dispatched by email to the authorised recipient but ‘cc’ copy sent to the applicant’s street address), the Tribunal wrote to the applicant and advised that on 3 October 2018, the Tribunal had affirmed the Department decision not to approve the nomination relating to him made by his nominating employer (Phuong Vo Australia Pty Ltd). The applicant was advised the above information was relevant as cl.186.223(3) requires the nomination made in relation to him by his nominating employer, must have been approved. The applicant was advised that subject to his comments, if the Tribunal relied on this information it may be the reason, or part of the reason, for affirming this decision. The applicant was requested to respond in writing by 18 October 2018. As at the time and dated of this decision, the applicant has not lodged further material evidence with the Tribunal.

18. Section 360 of the Act states inter alia the “Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments”. However, section 359C of the Act provides that if a person fails to respond to a s.359 or s.359A letter, the “Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information”. In the circumstances of this case, given no response was received to the Tribunal’s s.359A letter, and given no material evidence was otherwise lodged with the Tribunal, and given the applicant was made aware of the deficiencies in the application at the time of the delegate’s decision (16 January 2017), the Tribunal has decided to make a decision on the review without taking any further action to obtain the applicant’s views on the information.

19. Further, the Tribunal has given consideration to whether it should adjourn the review under subsection 363(1)(b) of the Act in order to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. I have also had regard to the decision in Minister for Immigration and Citizenship v Li[4] regarding the reasonableness of any request for an adjournment (something that was not requested in this case), and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[6] where analogous issues were discussed.

    [2] [2002] FCA 617

    [3] [2012] FMCA 28

    [4] [2013] HCA 18 (8 May 2013)

    [5] [2014] FCAFC 1 (4 February 2014)

    [6] [2014] FCA 915 (28 August 2014)

20. The Tribunal also considered whether, in the circumstances of this case, the information that the applicant meets the requirements in clauses 186,223, 186.233 or 186.242 are likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant. The Tribunal has also had regard to the fact that the application was refused by the Department on 16 January 2017. Therefore, the applicant has already been aware for approximately 9 months of the delegate’s reasons for refusing the application. 

21. In these circumstances, and based on the evidence set out herein, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant meets the requirements of clauses 186,223, 186.233 or 186.242.  The Tribunal has decided not to delay its decision any further. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that they meet the requirements of clauses 186,223, 186.233 or 186.242.

22. That being said, the Tribunal notes the Department decision not to approve the nomination relating to him made by his nominating employer (Phuong Vo Australia Pty Ltd) had been affirmed by the Tribunal on 3 October 2018. The applicant has therefore not met cl.186.223(3). Further, cl.186.223 is not met.

23. 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.

    DECISION

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

    Mr S Norman
    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.