WU (Migration)

[2018] AATA 2494

WU (Migration) [2018] AATA 2494 (1 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jiechang WU

CASE NUMBER:  1728440

DIBP REFERENCE(S):  BCC2015/4027864

MEMBER:Mary Sheargold

DATE:1 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 01 June 2018 at 3:19pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 – Employer Nomination Scheme – Subject of an approved or pending nomination – Nominated refused – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 5.19, Schedule 2 cl 186.233

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
Singh v MIBP [2017] FCAFC 105

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 1 November 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 23 December 2015. 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 Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. On 1 November 2017, the delegate refused to grant the visa because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations because there was no approved nomination.

6. The Tribunal received an application for review on 15 November 2017, accompanied by a copy of the delegate’s decision.  No further submissions were received.  The applicant was represented in relation to the review by his registered migration agent.

7. The Tribunal has before it the departmental file relating to the application.

8. On 26 April 2018, the Tribunal wrote to the applicant. The letter was issued pursuant to ss.359A of the Migration Act 1958 (the Act).  The letter stated that the application for approval of the nomination position in relation to the applicant’s visa application, made by Ling Phat Ngo, had been refused by a delegate of the Minister for Immigration, and that on 24 April 2018, the Tribunal affirmed the delegate’s decision to refuse the nomination.  The letter stated that the nominator’s application, therefore, had not been approved.  The letter then stated that this information was relevant to the review because it is a requirement for the grant of a visa that the position specified in the applicant’s visa application is the subject of an approved nomination.  Finally, the letter stated that if the Tribunal relied on that information in making its decision, it may find that the position specified in the applicant’s visa application is not the subject of an approved nomination, and that this would mean that the applicant did not satisfy a requirement for the grant of the visa, which would require the Tribunal to affirm the decision under review.

9. The invitation requested that the applicant’s comments or response be provided in writing by 10 May 2018, noting that an extension of time to respond could be requested prior to that date.  The Tribunal advised the applicant that if the comments or response, or a request for an extension, was not received by the due date, then entitlement to appear before the Tribunal would be lost and the Tribunal might proceed to make its decision on the available evidence without taking any further steps to obtain the comments or response.

10. The Tribunal did not receive any response to the 26 April 2018 letter. As the applicant has failed to comment or respond, s.359C(2) applies and the Tribunal may make a decision on the review without taking any further action to obtain the comments or response. Further, as s.359C(2) applies to the applicant, s.360(3) states that he is not entitled to appear before the Tribunal. Under s.363A, the Tribunal does not have the power to permit a party to do something he is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.

11. However, the Tribunal exercised its discretion under s.363(1)(b) to adjourn the review for a period of time. . On 14 May 2018, the Tribunal wrote to the applicant and advised him that the Tribunal would not make a decision regarding his review application before 4:00pm on 30 May 2018, and that it would accept and consider any comments or response to the 26 April 2018 letter from the applicant before that time.  The Tribunal has not received any response in relation to the letter dated 14 May 2018, up until the date of the decision.

12. The Tribunal gave consideration to whether it should further adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support his review application.  In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] 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[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617.

    [2] [2012] FMCA 28.

    [3] [2013] HCA 18 (8 May 2013).

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

    [5] [2014] FCA 915 (28 August 2014)

13. The Tribunal has considered whether, in the circumstances of this case, information that the applicant meets the requirements in cl.186.233 is likely to be forthcoming and whether the applicant has had a fair opportunity to provide relevant information already, and the significance of the information to the applicant.

14. The Tribunal has had regard to the fact that the application was refused by the Department on 1 November 2017 because the delegate concluded that there was no approved nomination.  The applicant submitted a copy of the primary decision record with the review application.  As a result, the Tribunal observes that the applicant has been aware for approximately 7 months of the reasons for the visa application refusal.

15. Further, as noted above, the applicant has provided no further information to the Tribunal since the application for review was received on 15 November 2017.  The applicant has been aware since at least 26 April 2018 that the nomination application relating to his visa application had been refused, and that the Tribunal may rely on that information.  However, the applicant has not provided the Tribunal with any comments or response in relation to this.

16. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide 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 any information as to whether he meets the requirements of cl.186.233. The Tribunal is not disposed to delay making a decision indefinitely.

17. Accordingly, the Tribunal has decided not to further exercise its discretion under s.363(1)(b) of the Act to adjourn the review to allow the applicant more time in which to demonstrate that he meets the requirements of cl.186.233.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is that there is no approved nomination.

    Nomination of a position

20. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

21. 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.

22. The Tribunal finds that the applicant cannot satisfy cl.186.233 of Schedule 2 to the Regulations because the position specified in the visa application is not the subject of an approved nomination. The Tribunal finds that Ling Phat Ngo’s application for approval of his nomination for the position of Cook in relation to the applicant was refused by the Department and that this decision was affirmed by the Tribunal, which means there is no review pending for the nomination refusal that may have given rise to the potential for a different outcome in relation to the nomination.

23. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[6]

    [6] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

24. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, he cannot overcome his current inability to meet cl.186.233 in relation to his application. The nomination by Ling Phat Ngo was specifically linked to his visa application, and that nomination is not, and now cannot be, approved.

25. Therefore, cl.186.233 is not met.

26. 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

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

    Mary Sheargold
    Member