BI (Migration)

[2019] AATA 2076

BI (Migration) [2019] AATA 2076 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms SHUJUAN BI

CASE NUMBER:  1722345

HOME AFFAIRS REFERENCE(S):           BCC2015/3635000

MEMBER:Michael Cooke

DATE:14 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 14 February 2019 at 3:06pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Corporate General Manager – not subject of approved nomination – not subject of nomination refusal review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), r 1.13A, Schedule 2, cls 186.223, 186.233, PIC 4020

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 4 September 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 2 December 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 Labour 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 Corporate General Manager ANZSCO 111211.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223(3) of Schedule 2 to the Regulations as the applicant was not the subject of an approved nomination. The applicant is also not the subject of a Tribunal review of the nomination refusal.

6. The applicant appeared before the Tribunal on 8 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son Mr Mu. 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 that the applicant is not the subject of an approved nomination and not the subject of a Tribunal review of the nomination refusal.

   Nomination of a position

9. Clause 186.233 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. 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.

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 applicant in oral evidence refuted the fact (see her submission) that she had breached PIC4020. She was previously the subject of a Tribunal decision affirming that breach. She informed that she had taken the matter on appeal to the Courts. She was adamant that a decision to affirm her matter would result in the unemployment of many Australian and permanent residents and other visa holders. Her enterprise ‘Sharetea Pty Ltd’ had been a roaring success and was continuing to expand in the quantity of stores and employees. She and her son provided a plethora of financial information to prove her claims about the success of ‘Sharetea’.

12. The Tribunal explained to her that she could not succeed in the review because she did not meet crucial requirements for the visa. She lacked an approved nomination and had not had the refusal of the nomination reviewed at the Tribunal. The applicant then dissolved into tears and her son explained that the incompetence of migration agents had contributed to her present situation. She insisted she had the necessary skills and ability to continue to make the enterprise a success. In this way she had helped to contribute employment and taxes to Australia as well as the bills she paid to assorted lawyers, banks and landlords who owned premises were ‘Sharetea’ was served in the franchise chain.

13. The Tribunal is response to the applicant, indicated from her comprehensive evidence that she had been a significant business success story. Unfortunately her success was built on shaky foundations as she had never succeeded in fixing her various visa problems. These had contributed to her present travails. Thus she was appearing before the Tribunal on this occasion.

14. The Tribunal finds that the employer nomination by ‘Sharetea Australia Pty Ltd’ was refused on 28 November 2016 and no application for review of the Departmental refusal decision has been received by the Tribunal. This fact has been pointed out to the applicant in the letter requesting information - pursuant to s.359(2) of the Act (T1, f.19). The applicant responded to this Invitation by submission (T1, 151-152) and with additional information (T1, ff.32-150,154).

15. Therefore, the Tribunal is satisfied on the evidence before it that cl.186.233(3) is not met.

16. 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.

    DECISION

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

    Michael Cooke
    Senior Member

    
    

    ATTACHMENT A

    186.233(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)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)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 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 not more than 6 months after the Minister approved the nomination.