KUMAR (Migration)

[2019] AATA 496

KUMAR (Migration) [2019] AATA 496 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rohit KUMAR

CASE NUMBER:  1717288

HOME AFFAIRS REFERENCE(S):           BCC2017/135345

MEMBER:Cathrine Burnett-Wake

DATE:14 March 2019

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 14 March 2019 at 1:48pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – no approved nomination – Cook (ANZSCO 351411) – tribunal affirmed refusal – no response to tribunal communication – decision under review affirmed

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

Migration Regulations 1994, Schedule 2 cl 186.223, rr 1.13A, 1.13B

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 27 July 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 11 January 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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa under the Temporary Residence Transition stream, to work in the nominated position of Cook (ANZSCO 351411). This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination lodged by the sponsor, WESCOTT, NAOMI JOY, was refused by the Department, as such, there was no approved nomination.

6. On 27 February 2019, 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 that the application for review of the related nominated position, made by WESCOTT, NAOMI JOY, was recently affirmed by the Tribunal.

8. It was explained in the letter to the applicant that this information is relevant to their 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.

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 13 March 2019, or they would lose any entitlement they might otherwise have under the Act to appear before the Tribunal.

10. However, 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, Mr Malek Fadi, which was 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 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 applicant 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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

16. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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.

17. In addition, this criterion also requires that:

    ·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.

18. WESCOTT, NAOMI JOY’s nomination application was refused by the Department and although a review application was lodged with the Tribunal, this review application was affirmed. The applicant failed to provide any response to, or comment on, this information. As the nomination application for the position to which the applicant’s Subclass 186 visa application relates has not been approved it follows that the applicant does not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations.

19. Therefore, cl.186.223 of Schedule 2 to the Regulations is not met.

20. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

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

    Cathrine Burnett-Wake
    Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; 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.