1512534 (Migration)

[2016] AATA 4185

1512534 (Migration) [2016] AATA 4185 (26 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms SHANG YING YANG

CASE NUMBER:  1512534

DIBP REFERENCE(S):  bcc2015/2840151 BCC2015/284824

MEMBER:Carolyn Wilson

DATE:26 July 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 26 July 2016 at 11:54am

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 on 10 September 2015 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 to the Department of Immigration for the visa on 27 January 2015. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Business and Communication Development Consultant (Social Professionals nec). 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 visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination for the position to which the application related had not been approved.

6. The applicant appeared before the Tribunal on 26 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is the position to which the application relates is an approved nominated position

   Nomination of a position

9. 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.

10. 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.

11. The position to which this application relates is as a Business and Communication Development Consultant for a business operated by Martin Bonnici. That nomination application was refused by a delegate of the Department on 11 August 2015.  The nomination refusal was the subject of an application for review.  The Tribunal affirmed the decision, finding the nomination was not approved, on 17 May 2016.

12. The Tribunal wrote to the applicant on 20 May 2016 pursuant to s.359A, putting to the applicant the adverse information that the Tribunal had affirmed the decision not to approve the nomination. The applicant responded stating she wanted more time to respond to the adverse information as she was currently undertaking exams and could not respond.  The Tribunal invited her to attend a hearing.

13. In pre hearing submissions hearing the applicant requested the Tribunal make a favourable decision.  She is returning to China on 5 August for her late father’s burial ceremony and then wants to return to Australia to complete her studies.  At hearing she said she wanted more time to find an alternate sponsor.  She also asked the Tribunal to refer the matter to the Department for Ministerial intervention.

14. The Tribunal finds there is no utility in delaying a decision, as a potential alternate sponsor will not change the outcome.  Clause 186.233 requires that the nominated position to which the application relates has been approved, and the relevant nomination has not been approved. The Tribunal explained to the applicant it did not have the power to waive essential criteria and make a favourable decision on her application. 

15. The applicant cannot satisfy an essential criterion because the nomination for this position has not been approved.

16. Therefore, cl.186.233 is not met.

17. The applicant has 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.

18. The Tribunal has noted the request for referral to the Department for consideration by the Minister pursuant to s.417 of the Act but has decided not to refer the matter.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Carolyn Wilson
    Member