White (Migration)

[2018] AATA 4791

White (Migration) [2018] AATA 4791 (2 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Holly Mary - Anne White

CASE NUMBER:  1619498

HOME AFFAIRS REFERENCE(S):           BCC2016/97149

MEMBER:Susan Trotter

DATE:2 October 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 02 October 2018 at 8:38am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry scheme – no nominated position – no evidence of approved sponsor nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65,359C, 360, 363
Migration Regulations 1994 (Cth), r 5.19 Schedule 2 cls 187.223, 187.242

CASES
 Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [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 then Minister for Immigration and Border Protection[1] (the Minister) to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

   [1] Now the Minister for Immigration, Citizenship and Multicultural Affairs

2. The applicant, a citizen of the United Kingdom, applied for the visa on 6 January 2016.

3. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

4. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

6. In the present case, the applicant is seeking the visa in Direct Entry stream.

7. The delegate refused to grant the visa on the basis that cl.187.223(3) was not met because the applicant was not the subject of an approved nomination as required.

8. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 19 November 2016.

9. The applicant was represented in relation to the review.

10. On 14 September 2018, the Tribunal invited the applicant to comment on or respond to certain information before it. The Tribunal’s letter stated as follows:

    I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa.

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up its mind about the information.

    The particulars of the information are:

    ·Department of Home Affairs (previously the Department of Immigration and Border Protection) (the Department) records indicate that on 4 January 2016, the Trustee for PJL Enterprises lodged an application for approval of an employer nomination in the Direct Entry stream under subregulation 5.19(4) of the Migration Regulations 1994 (the Regulations) with Department. This application identified the nominated person as you;

    ·On 6 January 2016, you lodged an application for a Subclass 187 Regional Employer Nomination (Permanent) visa with the Department. In this application, you provided the employer nomination details for the employer application lodged by the Trustee for PJL Enterprises on 4 January 2016;

    ·On 28 September 2016, the Department refused the employer nomination application lodged by the Trustee for PJL Enterprises. Our records indicate that no application for review of this decision has been lodged.

    ·As a result, there is no evidence as at the date of this letter that the nomination application lodged by the Trustee for PJL Enterprises in favour of you has been approved.

    ·There is also no evidence before the Tribunal that the Trustee for PJL Enterprises has lodged an application for approval of a nomination in the Temporary Residence Transition stream under subregulation 5.19(3) identifying you as the nominated person.

    ·Nor is there any evidence before the Tribunal to indicate that the position nominated by the Trustee for PJL Enterprises was in accordance with a labour agreement that is in effect and to which the Trustee for PJL Enterprises is a party.

    The above information is relevant to the review because if the Tribunal relies upon it in making its decision:

    ·the Tribunal may find that you do not meet the requirements of cl.187.233(3) of Schedule 2 to the Regulations at the time of the Tribunal’s decision because the Minister has not approved the nomination lodged by the Trustee of PJL Enterprises as required by that subclause.

    ·Further, the Tribunal may find that the position to which your visa application relates is not a position nominated in an application for approval under subregulation 5.19(3) such that you cannot meet the requirements of cl.187.223 of Schedule 2 to the Regulations at the time of the Tribunal’s decision.

    ·Further, the Tribunal may also find that the position to which your visa application relates was not a position nominated by the Trustee of PJL Enterprises in accordance with a labour agreement that is in effect and to which the Trustee of PJL Enterprises is a party such that you cannot meet the requirements of cl.187.242 of Schedule 2 to the Regulations at the time of the Tribunal’s decision;

    ·Accordingly, the Tribunal may find that you cannot meet the requirements of cl.187.233, cl.187.223 or cl.187.242 and, therefore, that the decision under review to refuse to grant the visa must 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 28 September 2018. 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 either the written comments or response by 28 September 2018, you may ask us for an extension of time. If you make such a request, it must be received by us before 28 September 2018 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.

    If we do not receive either your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.

11. The invitation was sent to the applicant’s nominated authorised recipient, their registered migration agent, at the address last provided in connection with the review, being the recipient’s email address as advised to the Tribunal.

12. As at the date of this decision, the Tribunal had not received any response to the 14 September 2018 invitation. The Tribunal therefore did not receive any response to its letter of 14 September 2018 within the prescribed time for responding to the statutory invitation, nor was an extension of time sought. As the applicant failed to provide written comments or a response within the prescribed time, s.359C(2) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s comments or response.

13. Further, as s.359C(2) of the Act applies to the applicant, she loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review: s.360(3) of the Act.

14. Although neither the applicant nor her representative has requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support the application for review.

15. In doing so, the Tribunal has taken into account the decisions in 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 have held that the Tribunal is not required to indefinitely defer its decision-making processes. 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.

16. Neither the applicant not her representative provided any response or comment to the Tribunal invitation within the prescribed period set for this purpose, or at all.

17. The Tribunal has had regard to the fact that the visa application was refused on 2 November 2016 for the reasons stated above. The applicant provided a copy of the delegate’s decision record with the review application. The Tribunal therefore observes that the applicant has been aware for nearly two years of the reasons for the visa application refusal.

18. The Tribunal has also taken into account the fact that the applicant has had the benefit of representation from a registered migration agent in order to assist her with this application and considers it reasonable to expect that applicant’s representative, as a registered migration agent, has an understanding of the requirements of the legislation and the implications of the invitation the Tribunal sent to the applicant on 14 September 2018, which consequences were also set out in the Tribunal’s letter of 14 September 2018.

19. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issue arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that the applicant meets the requirements for a Subclass 187 visa application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

    Nomination of a position

22. Clause 187.233, as applicable in this case, is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

23. In addition, this criterion also requires that:

    (a)  the person who will employ the applicant is the person who made nomination;

    (b)  the nomination has been approved and has not been subsequently withdrawn;

    (c)  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;

    (d)  the position is still available to the applicant; and

    (e)  the visa application was made no more than six months after the nomination of the position was approved.

24. As noted in the Tribunal’s 14 September 2018 letter to the applicant, the evidence before the Tribunal is that nomination application lodged by the Trustee for PJL Enterprises on behalf of the applicant was refused by the Department on 28 September 2016 with the Tribunal records indicating that no application for review of that decision has been lodged. It follows that the nomination by the Trustee for PJL Enterprises has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that the applicant does not meet the requirements of clause 187.233 at the time of its decision.

25. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Susan Trotter
    Member

    
    

    ATTACHMENT A

    187.233(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:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)      The person who will employ the applicant is the person who made the nomination.

    (3)      The Minister has approved the nomination.

    (4)      The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)      The position is still available to the applicant.

    (6)      The application for the visa is made no more than 6 months after the Minister approved the nomination.