WONG (Migration)

[2021] AATA 5406

WONG (Migration) [2021] AATA 5406 (23 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Wei Sim WONG
Ms QI ENN CHONG
Mr KENG CHENG CHONG
Mr ADRIEN JIN MING CHONG
Mr JIN ER CHONG

CASE NUMBER:  1827783

HOME AFFAIRS REFERENCE(S):          BCC2017/1931600

MEMBER:Amanda Mendes Da Costa

DATE:23 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 23 September 2021 at 3.22pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Cook – subject of an approved nomination – no response to s 359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

CASES
Hasran v MIAC [2010] FCAFC 40

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 4 September 2018 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 31 May 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 (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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook ANZSCO 351411.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.233 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.

6. The applicants were represented in relation to the review by their registered migration agent.

7. The Tribunal has had the opportunity to view both the file of the Department and of the Tribunal in respect of the applicant.

8. On 26 August 2021 the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to comment on or respond to information which the Tribunal considered if accepted and relied upon by the Tribunal would be the reason or part of the reason for it affirming the decision made by the Department to refuse to grant the applicant a subclass 186 visa.  That information was that on 17 May 2021 the Tribunal found that it did not have jurisdiction in this matter to review the Department’s decision to refuse the nomination application made by Loong Fong Pty Ltd (the nominator) in respect of the applicant.  This was because the nominating company had been deregistered on 5 March 2021.

9. The Tribunal advised the applicant that its own records and that of the Department indicated that the applicant was not the subject of an approved nomination by a standard business sponsor.

10. The Tribunal explained that the above information was relevant to its review because  it was a requirement for the grant of the visa that the position specified in his visa application was the subject of n approved nomination.

11. The Tribunal explained that if it relied on this information in making its decision, it may find that the position specified in the visa application was not the subject of an approved nomination.  This would mean that the applicant did not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision under review.

12. The applicant was requested to provide any comments or response (in writing) by 9 September 2021.

13. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 9 September 2021, the Tribunal may make a decision on the review without taking further steps to obtain to comments or response and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

14. The applicant has not provided the comments or response within the prescribed period (or at all) and no extension has either been sought or granted.  In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect off s.363A of the Act is that if an 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments or response.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant meets the requirements of cl.186.233.

    Nomination of a position

17. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. 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.

18. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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.

19. Based on the evidence before it, the Tribunal is satisfied that on 31 July 2018  the application for approval of the nominated position for the applicant made by the nominator was refused by a delegate of the Minister for Immigration.  The nominator sought a review of that decision but on 17 May 2021 the Tribunal found that it had no jurisdiction to review the decision to refuse the nomination application made by the nominator in respect of the applicant. This was because the nominating company was deregistered on 5 March 2021.  This means that nominator’s application for the nominated position has not been approved.

20. There is no evidence to suggest that the applicant is the subject of any other approved nomination.

21. Accordingly, the Tribunal is not satisfied that the applicant meets the requirements of  cl.186.233.

22. The applicant has only sought to satisfy the criteria for a Subclass 186 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.

23. Given the Tribunal has found that the first named applicant does not satisfy the primary criteria for the grant of a Subclass 186 visa, it does not consider that the applications of the second, third, fourth and fifth named applicants should be reconsidered as they are not members of the family unit of a person who has satisfied the primary criteria for the grant of the visa.

    DECISION

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

    Amanda Mendes Da Costa
    Member

    
    

    ATTACHMENT A

    186.233(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)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)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 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 not more than 6 months after the Minister approved the nomination.