Oh (Migration)

[2023] AATA 2090

Oh (Migration) [2023] AATA 2090 (3 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dongwook Oh
Ms Eunhye Choi
Miss Leanna Grace Oh

REPRESENTATIVE:  Ms Susan Park (MARN: 0640035)

CASE NUMBER:  2215598

HOME AFFAIRS REFERENCE(S):          BCC2019/6186559

MEMBER:Jade Murphy

DATE:3 July 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 3 July 2023 at 12:20pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Toolmaker – no approved nomination – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 Home Affairs on 5 October 2022 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 November 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 (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 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 the Temporary Residence Transition stream, to work in the nominated position of Toolmaker (ANZSCO 323412).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the nomination lodged by the sponsor, NS Waterland Pty Ltd, was refused by the Department, as such, there was no approved nomination.

6. On 24 April 2023, the Tribunal wrote to the applicants 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:

   ·On 20 November 2019, NS Waterland Pty Ltd (“the nominator”) applied to the Department of Home Affairs (“the Department”) to nominate the applicant for the position of ‘Toolmaker’ (ANZSCO 323412).

   ·On 31 August 2022, the application for approval of the nominated position made by the nominator was refused by the Department.

   ·The nominator did not apply to the Tribunal for merits review of that decision. 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 applicants 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 applicants’ comments / response, or any request for an extension of time in which to do so, by 8 May 2023, or they would lose any entitlement they might otherwise have under the Act to appear before the Tribunal.

10. However, the applicants did not provide any comments or response within the prescribed period. Nor did the applicants, nor 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 applicants’ representative, Ms Susan Park, which is the last address for service provided by the applicants in connection with the application for review.

12. 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.

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.

15. The applicants were represented in relation to the review.

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

    Nomination of a position

18. 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.

19. 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 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.

20. On 31 August 2022, the nomination lodged by NS Waterland Pty Ltd, being the nomination referred to in paragraph 186.223(1), was refused by a delegate for the Minister of Home Affairs.

21. The nominator did not apply to the Tribunal for merits review of that decision. This means that the nomination application relating to the position specified in the visa application has not been approved.

22. As the nomination (the one referred to in paragraph 186.223(1)) has not been approved the Tribunal finds that the position to which the application relates is not the subject of an approved nomination.

23. Therefore, cl 186.223 is not met.

24. 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

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

    Jade Murphy
    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.