Voznyuk (Migration)

Voznyuk (Migration) [2021] AATA 5358 (17 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Eduard Voznyuk
Master Leon Voznyuk
CASE NUMBER:  1834302
HOME AFFAIRS REFERENCE(S):          BCC2018/394004
MEMBER:Terrence Baxter
DATE:17 November 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 186 (Employer Nomination Scheme) visa:
·cl 186.223(2) of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in the matter of the second named applicant.

Statement made on 17 November 2021 at 9:31am
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Dental Technician – subject of an approved nomination – decision under review remitted
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – second-named applicant – no physical presence in the migration zone when application for review was lodged – No jurisdiction
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347
Migration Regulations 1994 (Cth), Schedule 2, cl. 186.223
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 November 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 24 January 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Dental Technician for G and L Morris Investments Pty Ltd as trustee for the Morris AB Trust (the nominator).
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 that he be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 5 October 2018 and that accordingly the applicant did not satisfy cl 186.223(2) and did not meet cl 186.223 as a whole.
The delegate also found that the second named applicant could not be granted a Subclass 186 visa, as he did not meet the secondary visa criterion (cl 186.311) requiring him to be a member of the family unit of a person who met the primary criteria and holds a Subclass 186 visa.
The applicants lodged an application for review of the delegate’s decision with the Tribunal on 22 November 2018.
The applicant appeared before the Tribunal on 21 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Graeme Morris, the primary dental prosthetist of the nominator’s practice, and from Ms Lelanie Morris, the practice manager of that practice. The hearing was a joint hearing with the hearing of an application for review of a decision to refuse the nomination application by the nominator. The Tribunal hearing was conducted with the assistance of an interpreter in the Ukrainian and English languages.
The Tribunal exercised its discretion to hold the hearing by video conference through MS Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined that it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.
The applicants were represented in relation to the review by their legal practitioner, Mr Anthony Stolar of Coongie Pty Ltd. The representative attended the Tribunal hearing by video conference.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether there is an approved nomination.
Nomination of a position
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.
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.
Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Dental Technician approved, with the applicant as nominee, on 23 January 2018. The nomination application was refused on 5 October 2018 and the nominator sought review of that decision with the Tribunal on 24 October 2018.
On 17 November 2021, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination.
Therefore, cl 186.223(2) is met in respect of the applicant.
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
In relation to the second named applicant, s 347(3) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s 338(2), an application for review may only be made by a non-citizen who was physically present in the migration zone at the time when the application for review is made. Section 338(2) provides that a decision to refuse to grant a non‑citizen a permanent visa is a Part 5 – reviewable decision if the non-citizen made the application for the visa at a time when the non-citizen was in the migration zone and the visa is a visa that could be granted while the non-citizen is in the migration zone. “Migration zone” is defined in s 5(1) of the Act and, generally speaking, means the Australian States and Territories.
The movement records of the Department show that the second named applicant was not in the migration zone when the application for review was lodged (22 November 2018). A Subclass 186 visa is a visa that could be granted when a non-citizen is either inside or outside the migration zone.
On 18 August 2021, the Tribunal wrote to the applicants at their email address in the following terms:
Section 347(3) of the Migration Act 1958 requires that an applicant must be onshore at the time of the visa application and the time of the review application. In order for
Master Leon Voznyuk to have made a valid application, he must have been in
Australia at the time the review application was lodged with us on 22 November 2018. It appears that Master Leon Voznyuk was not in Australia on that date, and I am therefore of the view that his application is not a valid application. However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been
made, you are invited to do so, in writing, by 1 September 2021 or alternatively, you may do so orally at the hearing on 21 September 2021.
The representative responded to the Tribunal on 16 September 2021. He stated that the second named applicant was overseas on 22 November 2018 and was not in Australia at the time of the review application, made on his behalf. The representative acknowledged that the application of the second named applicant was not valid.
At the hearing, the applicant acknowledged that the applicants had received the Tribunal’s invitation to comment dated 18 August 2021. The Tribunal explained to the applicant the requirement that the second named applicant be in the migration zone at the time of lodgement of the review application. He stated that the second named applicant was not onshore at that time.
The Tribunal finds that the application for review by the second named applicant is not an application properly made under s 347 and the Tribunal does not have jurisdiction in the matter of that application.
DECISION
The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 186 (Employer Nomination Scheme) visa:
·cl 186.223(2) of Schedule 2 to the Regulations.
The Tribunal does not have jurisdiction in the matter of the second named applicant.
Terrence Baxter
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.

[2021] AATA 5358

17 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction

Remedies