You (Migration)

[2019] AATA 6251

You (Migration) [2019] AATA 6251 (16 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Wei You
Ms Huifang Xin

CASE NUMBER:  1806654

HOME AFFAIRS REFERENCE(S):          BCC2017/3388823

MEMBER:Jade Murphy

DATE:16 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 16 December 2019 at 1:47pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – ICT Support Technician – subject of an approved nomination – no response to s 359A letter – not entitled to appear before the Tribunal – review of nomination withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 September 2017. 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 (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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of ICT Support Technician (ANZSCO 313199).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the delegate found that the nomination referred to in cl.187.233(1) was refused by a delegate for the Minister for Home Affairs on 18 January 2018. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.

6. On 29 November 2019, 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 applicants 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 Heidelberg Corporate Pty Ltd, was withdrawn from proceedings before the Tribunal.

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 13 December 2019 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, 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 applicants’ representative, Mr Paul O’Connor, which was 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. The applicants were represented in relation to the review by their registered migration agent.

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 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 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.

19. On18 January 2018, the nomination lodged by Heidelberg Corporate Pty Ltd, being the nomination referred to in paragraph 187.233(1), was refused by a delegate for the Minister for the Department of Home Affairs.

20. On 8 February 2018, Heidelberg Corporate Pty Ltd lodged an application for review with the Tribunal.

21. On 28 November 2019, the Tribunal accepted a withdrawal request made by Heidelberg Corporate Pty Ltd and made the decision that it no longer had jurisdiction to review the delegate’s decision.

22. On 29 November 2019 the Tribunal wrote to the applicants and invited them to comment or respond to information that the application for approval of the nominated position made by Heidelberg Corporate Pty Ltd (the nominator) had been refused by the Department and that an application for review of that decision with the AAT had been withdrawn by the nominator. The applicants did not respond to the invitation.

23. As the relevant nomination has been refused, the Tribunal must find that the position to which the application relates is not the subject of an approved nomination that identifies the visa applicant. Therefore cl.187.233 is not met.

24. 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

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

    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 seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.