Anuraag (Migration)

[2023] AATA 3264

Anuraag (Migration) [2023] AATA 3264 (2 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Anuraag

REPRESENTATIVE:  Ms Sha Lu (MARN: 1790876)

CASE NUMBER:  1935603

HOME AFFAIRS REFERENCE(S):          BCC2019/2683489

MEMBER:Jade Murphy

DATE:2 October 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 2 October 2023 at 10:36am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – records manager – subject of approved position nomination – related nomination application refused and application for review withdrawn – no response to invitation to comment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C(2), 360(3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASE

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 Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 23 May 2019. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Records Manager (ANZSCO 224214).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the nomination to which the application relates had not been approved by a delegate of the Minister.

6. On 14 September 2023, the Tribunal wrote to the applicant pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.

7. The particulars of the information were:

   ·On 20 May 2019, HCR CONSTRUCTION PTY LTD (“the nominator”) applied to the Department of Home Affairs (“the Department”) to nominate the applicant for the position of Records Manager (ANZSCO 224214).

   ·On 9 October 2019, the application for approval of the nominated position made by the nominator was refused by the Department. The nominator applied to the Tribunal for merits review of that decision.

   ·On 26 June 2023, the Tribunal determined that it did not have jurisdiction to hear the nominator’s application because the nominator withdrew their application for review. This means that the nomination application relating to the position specified in the visa application has not been approved.

8. It was explained in the letter to the applicant that this information is relevant to his review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination. The letter also stated that if the Tribunal were to rely on this information in making a decision, it may find that the position specified in the visa application is not the subject of an approved nomination. This would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review.

9. The invitation also specifically stated that the Tribunal must receive the applicant’s comments / response, or any request for an extension of time in which to do so, by 28 September 2023, or he would lose any entitlement he might otherwise have under the Act to appear before the Tribunal.

10. The applicant did not provide any comments or response within the prescribed period. Nor did the applicant, 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

11. The Tribunal notes that it sent the invitation under section 359A of the Act to the email address belonging to the applicant’s representative, Ms Sha Lu, which is the last address for service provided by the applicant in connection with the application for review.

12. However, as noted above, the applicant failed to provide any comments / response to the section 359A invitation within the prescribed period. This means that subsections 359C(2) and subsection 360(3) apply to the applicant and he is 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.

13. 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.

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

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 position to which the application relates is the subject of an approved nomination.

    Nomination of a position

17. Clause 187.233 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, 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.

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. As explained to the applicant in the letter written pursuant to s.359A of the Act, the applicant’s employer’s nomination was refused by the Department and although a review application was lodged with the Tribunal, this review application was withdrawn, and the Tribunal subsequently found it did not have jurisdiction to consider the matter. As a result, the relevant employer nomination remains refused.  The applicant failed to provide any response to, or comment on, this information.

20. The information before the Tribunal is that the nomination application for the position to which the applicant’s visa application relates has not been approved. As a result, it follows that the applicant does not meet the criteria in cl.187.233 of Schedule 2 to the Regulations.

21. Therefore, cl 187.233 is not met.

22. 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

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

    Jade Murphy
    Member

    
    

    ATTACHMENT A

    187.233(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 Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.