Zhang (Migration)

[2018] AATA 2362

Zhang (Migration) [2018] AATA 2362 (22 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jiajun Zhang
Mrs Wei Zeng
Miss Ling Zhang

CASE NUMBER:  1726176

DIBP REFERENCE(S):  BCC2017/2296270

MEMBER:Cathrine Burnett-Wake

DATE:22 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 22 May 2018 at 9:49am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 186.233(3)

CASES
Singh v MIBP [2017] FCAFC 67

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 11 October 2017 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 28 June 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 (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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Construction Project Manager, ANZSCO 133111. 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. The delegate refused to grant the visas because the nomination lodged by the sponsor, Peter Rogers Constructions Pty Ltd (the Company) was refused by the Department, therefore the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations because there was no approved nomination.

6. For the purposes of background, the Company separately sought review of the Department’s refusal of the nomination application in related matter number 1722144. On 23 March 2018, the Tribunal made a decision to affirm the Department’s decision not to approve the Company’s nomination in respect to the position of Construction Project Manager for the applicant.

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

8. The applicants were sent correspondence on 29 March 2018, through their representative inviting them to appear before the Tribunal on 26 April 2018 to give evidence and present arguments. On 23 April 2018, the Tribunal wrote to the applicants, postponing the hearing due to unforeseen circumstances beyond the Tribunal Member’s control. The Tribunal notes that the applicants never responded to the initial correspondence inviting the applicant to hearing, nor the subsequent letter postponing the hearing.

9. On 26 April 2018, the Tribunal wrote to the applicants pursuant to section 359A of the Act to comment on / respond to certain information before it, namely that the application for approval of the nominated position made by the Company was refused by the delegate of the Minister for Immigration and the subsequent review application before the Tribunal was affirmed. As such the nomination for the position of Construction Manager had not been approved.

10. The Tribunal invitation stated that this information was relevant to the review because the Regulations required the applicants’ visa application to be subject of an approved nomination and, if it made this finding, the Tribunal would have no alternative other than to affirm the decision under review.

11. The invitation also specifically stated that the Tribunal must receive the applicants’ comments / response, or any request for an extension of time in which to do so, by 10 May 2018, or they would lose any entitlement they might otherwise have under the Act to appear before the Tribunal.

12. However, the applicants did not provide any comments or response within the prescribed period. Nor did the applicants, or their representative, request an extension of time within the prescribed period in which to do so.

    The Applicant's Loss of the Right to a Hearing

13. The Tribunal notes that it sent the invitation under section 359A of the Act to the email address belonging to the applicants’ representative, which was the last address for service provided by the applicants in connection with the application for review.

14. However, as noted above, the applicants failed to provide their comments/response to the section 359A invitation within the prescribed period. This means that subsections 359C(2) and subsection 360(3) apply to the applicants and they are not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something they are not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.

15. In addition, the Courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing. In the case of Singh v MIBP [2017] FCAFC 67 the Court held that the operation of ss.359C(2), 360(3) and 363A has no temporal restriction and can take effect at any time before or after a hearing invitation has been issued and before a hearing takes place.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

18. 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).

19. 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.

20. The Company's nomination application was refused by the Department and that decision was affirmed by the Tribunal. The applicants failed to provide any response to, or comment on, this information. As the nomination application for the position to which the applicants Subclass 186 visa application relates has not been approved it follows that the applicant does not meet the criteria in cl.186.233(3) of Schedule 2 to the Regulations.

21. Therefore, cl.186.233 of Schedule 2 to the Regulations is not met.

22. The applicants have 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. Pursuant to cl.186.311, the Tribunal must also affirm the decision to refuse to grant subclass 186 visas to the second, third named applicants (the applicant’s spouse and child) as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary criteria in their own right.

    DECISION

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

    Cathrine Burnett-Wake
    Member