Wu (Migration)

[2020] AATA 5256

Wu (Migration) [2020] AATA 5256 (3 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yongjin Wu
Mrs Xia Wang
Miss Jiling Wu

CASE NUMBER:  2004014

HOME AFFAIRS REFERENCE(S):          BCC2019/2280399 BCC20192280399

MEMBER:Mark Bishop

DATE:3 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 03 December 2020 at 10:21am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – related position nomination refused – no application for review – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 186.311

CASE
MIAC v Li (2013) 249 CLR 332

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 18 February 2020 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 26 April 2019. 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, to work in the nominated position of ICT Support Technician ANZSCO 313199 as set out in the decision record.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations.

6. On 10 November 2020 the Tribunal issued an affirm decision on the papers. On 11 November 2020 the applicant forwarded further material to the Tribunal raising the issue of jurisdictional error on the part of the Tribunal. The Tribunal examined this new material. This affirm decision was affected by jurisdictional error. This affirm decision was affected by jurisdictional error as the applicant had replied within time to a s.359(2) Request for Information made on 23 October 2020. Accordingly the applicant was entitled to attend a review hearing.

7. This jurisdictional error was significant. Accordingly the Tribunal vacated the decision of 10 November 2020 and  advised the applicant in writing it would set the review application down for a hearing.

8. The Tribunal initiated a new process for the review hearing and issued an invitation to appear notice on 17 November 2020 for a hearing scheduled for 3 December 2020.

9. On 30 November 2020 the applicant provided written submissions to the Tribunal consisting of VEVO, index and 457 documents, application summary, case outline, chronology and supporting documents. See hereunder.

10. On 2 December 2020 the Tribunal downloaded the relevant template for this review application.

11. The applicants appeared before the Tribunal on 3 December 2020 to give evidence and present arguments.

12. The applicants were represented in relation to the review by their registered migration agent. At the hearing the applicant was not represented by a MA or a solicitor. The secondary applicant, Mrs Xia Wang declined to give evidence. There was no appearance by the second secondary applicant Miss Jiling Wu.

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

    Request for Adjournment

14. On 30 November 2020 the applicant wrote to the Tribunal providing a detailed submission, lengthy case summary, a comprehensive range of attachments and requested an adjournment. The applicant submitted “having regard to the complexity and factors and Mr Wu’s circumstances above, we respectfully request that the hearing be postponed on natural justice”

15. The applicant’s submission did not set out a period of time for which it sought an adjournment. In light of the detail outlined in paragraph 18 below the Tribunal inquired of the applicant how long an adjournment he sought. The applicant advised he sought years. He did not proffer any reasons for seeking such a ling period of time.

16. On 2 August 2018 the President of the Administrative Appeals Tribunal brought down a Practice Direction relating to the conduct of reviews under Migration and Refugee Division. Clause 7 of the Practice Direction dealing with Migration and refugee Matters provides as follows:

    Seeking an adjournment

    7.3 If you seek an adjournment of a scheduled hearing, you must contact us immediately and state the reasons why the date is unsuitable.

    7.4 …

17. The High Court of Australia (HCA) in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner, which is reasonable and has regard to the statutory purposes of s.360. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct a conduct its review in a manner which ‘is fair, just, economical, informal and quick’.

18. As outlined above in paragraph 14 the MA attached a lengthy submission and voluminous attachments relating to prior applications for 457 and 186 visas, employment with Top Steel Solutions Pty Ltd, allegations or non-provision of advice to the applicant, requests for information, a desire to make complaints to the Migrant Agents Registration Authority, the Fair Work Ombudsman and the Border Watch Allegations and Referral Team concerning the activity of a Ms Jin and Top Steel Solutions.

19. The Tribunal reviewed all this material. The scheduled review hearing was 3 December 2020.  The material referred to in paragraph 14 above had been previously provided to the Tribunal in a largely similar if not identical form with the same request on 6 November 2020. There had been and  was sufficient time for the Tribunal to consider this material. Further the review application was futile as the nomination lodged by the nominator was refused by the delegate and the nominator did not lodge a review application of this refusal.

20. In light of the submissions concerning natural justice the Tribunal notes the particulars relate to matters involving Top Steel Solutions. As stated in the submission provided by the applicant at paragraph 37 “Top Steel Solutions did not lodge an AAT application for review for the nomination application” The requirement that the nominee in this review application be able to provide evidence of a current nomination is absolute. The requirement that an applicant have a current nomination is not subject to any discretion. It is an absolute requirement.  

21. Furthermore the Tribunal notes the applicant in this review application has had many months if not years to make complaints to any or all of the agencies identified in paragraph 17 above.

22. The Tribunal did not and does not have power to grant the review application as the applicant did not and does not satisfy the criteria of cl.186.223 of the Migration Regulations.

23. The allegations referring to natural justice relate to unrelated matters. They are not related to the issue at hand.

24. The Tribunal has regard to its statutory purpose to conduct a conduct its review in a manner which ‘is fair, just, economical, informal and quick’.

25. The Tribunal did not and does not have power to grant the review application as the applicant does not satisfy the criteria of cl.186.

26. Accordingly the Tribunal refused the application for an adjournment.

27. CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

28. Clause 186.223 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 appropriate 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.

29. 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 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.

30. On 23 October 2020 the Tribunal wrote to the applicant in the following terms:

    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 our mind about the information.

    The particulars of the information are:

    ·You applied for the Subclass 186 (Employer Nomination Scheme) visa based on a nomination of a position made by the nominator Top Steel Solutions Pty Ltd.  The nomination to which that position relates was refused by the Department of Home Affairs (‘the Department’).

    ·It is a requirement for the grant of a Subclass 186 visa that the nomination has been approved and that the nomination has not subsequently been withdrawn.

    ·The Tribunal’s records indicate that the nominator did not lodge an application for review of the Department’s decision to refuse the nomination.

    ·This means that the Department’s decision refusing the nomination in relation to you stands. Therefore, the relevant nomination for the position has not been approved.

    This information is relevant to the review because one of the requirements for the grant of the Subclass 186 visa is that the relevant nomination, that is the nomination you relied on when lodging your visa application, has been approved, and the information suggests that the nomination has not been approved and/or that it has been withdrawn.

    If we accept and rely on this information in making our decision, we may find that the relevant nomination has not been approved or has been withdrawn and therefore that you are not the subject of an approved nomination and do not meet the requirements of cl 186. This would be the reason or part of the reason for the Tribunal to affirm the decision under review, that is, the decision made by the Department to refuse you the grant of a Subclass 186 visa.

31. On 25 October 2019 the nomination lodged by Top Steel Solutions Pty Ltd, being the nomination referred to in paragraph 186.223(1), was refused by a delegate of the Minister for Immigration and Border Protection. See delegate’s decision dated 18 February 2020.

32. On 6 November 2020 and 30 November 2020 the applicant advised the Tribunal in writing (at paragraph 37 of both submissions) that “Top Steel Solutions did not lodge an AAT application for review for the nomination application”

33. In the review application hearing the Tribunal again confirmed to the applicant that the nomination of a position made by the nominator Top Steel Solutions Pty Ltd was refused by the Department of Home Affairs (‘the Department’) on 24 January 2018.

34. In evidence to the Tribunal the applicant advised he could not provide evidence of a current nomination. The applicant did not provide to the Tribunal proof of a current valid nomination.

35. In evidence to the Tribunal the applicant complained of non-compliance with an employment agreement. The applicant’s evidence to the Tribunal largely replicated his written submission.

36. There is an extensive submission and supporting documentation before the Tribunal. It is clear from this written submission that the applicant was aware of the purpose of the hearing as there are numerous references to an application for a 186 visa, the nominator and nominator process, the need to lodge a nominee application, consideration charged for such process, receipt of the relevant refusal letter by Mr Wu and requests for payment attached to future work associated with the nominator and nominee applications. The applicant has given evidence to the Tribunal. It is clear to the Tribunal the applicant has had a full understand of the process to date and is dissatisfied with the support provided by his then legal advisors. It is also clear to the Tribunal that the applicant is of the view his previous employer and legal advisors have not adequately progressed or protected his interests in gaining permanent residence in Australia.

37. However the issue before the Tribunal is the existence or otherwise of a current valid nomination.

38. There is no evidence before the Tribunal that the applicant has a current valid nomination. The applicant has not provided to the Tribunal proof of a valid current nomination.

39. There is no evidence before the Tribunal that the relevant nomination has been approved. The evidence before the Tribunal is that the prior nomination was refused and therefore that the applicant is not the subject of an approved nomination and does not meet the requirements of cl 186.223.

40. Therefore, cl.186.223 is not met.

41. At the conclusion of the hearing the Tribunal invited both the applicant and secondary applicant to make further oral submissions. Both persons declined.

    Secondary Applicants

42. The secondary applicants are members of the family unit of the applicant. They are not the members of the family unit of a person who holds the relevant visa. Accordingly they do not satisfy the criteria of cl.186.311 of the Regulations.

    CONCLUDING PARAGRAPH (ALL ISSUES)

43. 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.

    DECISION

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

    Mark Bishop

    
    

    Member

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.