Cai (Migration)

[2020] AATA 1231

Cai (Migration) [2020] AATA 1231 (17 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shaoqi Cai
Miss Liping Cai

CASE NUMBER:  1828357

HOME AFFAIRS REFERENCE(S):          BCC2016/1893558

MEMBER:De-Anne Kelly

DATE:17 April 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 17 April 2020 at 4:37pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Business Development Manager – subject of an approved nomination – received misleading advice – investments in Australia – situation surrounding COVID-19 – request to delay decision declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

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 21 September 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 31 May 2016. 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 in the Direct Entry stream, to work in a nominated position of Business Development Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations because on 23 August 2018 the nomination lodged by Pointcorp Management Pty Ltd being the nomination referred to in paragraph 186.233(1) was refused by a delegate of the Minister for Home Affairs.

6. The applicants appeared before the Tribunal on 10 March 2020 to give evidence and present arguments. The applicant appeared by telephone as he is unable to return to Australia. His daughter appeared in person.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicants meet cl.186.233(3) which provides as follows;

   (3)      The Minister has approved the nomination.

   Nomination of a position

10. 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.

11. 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.

12. After the delegate of the Minister refused the employer nomination, the nominator lodged a review application with the Tribunal on 23 March 2018. The Tribunal found Pointcorp Management Pty Ltd lodged their application for review out of time being made on the 19 September 2018 when the mandatory 21 days ceased on the 13 September 2018. It followed that there was no longer an application to review and the Tribunal had no jurisdiction to conduct a review. Therefore, the employer nomination was not approved.

13. Mr Shaoqi Cai stated that they had only recently been made aware that the employer nomination was refused and there was no review application by Pointcoprt Management Pty Ltd. Their former lawyer had disappeared and had mislead them and advised that they could get a permanent visa for Australia if they invested enough money in Australia. As a result of this advice they had invested in a hotel and other property development projects around Brisbane. Documents to support this were provided to the Tribunal.

14. The Tribunal considers that it is unfortunate that the applicants received misleading advice however this was from a lawyer they had appointed and it was their responsibility to undertake due diligence when selecting an adviser.

15. The daughter of the applicant addressed the Tribunal and stated she needed time to deal with her apartment in Melbourne and she had a car. She is also needed to oversee the projects for her Father as he is in China and cannot return to Australia due to the coronavirus and the fact that he does not hold a bridging visa.

16. The applicant asked that the Tribunal delay its decision by two months to allow his daughter to oversee the completion of the projects and also because the coronavirus is a threat to his daughter’s safety as the virus was in their building back in China.

17. The Tribunal said that the decision to purchase property, vehicles and undertake property development in Australia while on temporary visas did include the understanding that such temporary visas may cease and they would have to leave Australia.

18. The Tribunal understood the health concerns around coronavirus but there was always the option to transit and spend time in other countries on the journey back to China.

19. The applicant was advised that there was no approved employer nomination and it was a mandatory requirement of the visa legislation that there was an approved nomination.

20. The Tribunal advised the applicant that it would consider their requests and  he could have a further 14 days to seek advice and if required he could request an extension of time. The applicant did not request an adjournment at the hearing.

21. On the 24 March 2020, the registered migration agent wrote to the Tribunal with documents to support the property development projects in Australia and the ownership of an apartment and car by the applicant’s daughter. There was also information on the coronavirus impact and the cancellation of air flights.

22. The agent requested that the Tribunal delay its decision by two months because Ms Cai has been studying in Australia; has established roots and has been working full time. The projects in Australia are under Ms Cai’s name and she has to sign off on finances, liquor licences and legal documents. The Tribunal considers that documents can be digitally signed and returned by email and again that applicants who invest in Australia must accept that their temporary visa may cease and they will need to depart. The Tribunal does not consider it reasonable to delay a decision based on these reasons.

23. The Tribunal notes that this visa application was lodged on 31 May 2016 and refused by the delegate on 21 September 2018. The review application was lodged on 27 September 2018 and has already taken nearly eighteen months.

24. The Tribunal has considered this request and delayed its decision by five weeks following the hearing. It is noted that the news from China is that Covid 19 is under control; restrictions have been lifted; many Chinese citizens are returning to work and inbound flights are permitted.

25. The Department of Home Affairs has advised that temporary visa holders can apply for a further bridging visa if they find they are unable to depart Australia so the Tribunal considers that there are adequate arrangements in place to assist Ms Cai.

26. The Tribunal finds that it must proceed in a fair and just manner to make a timely decision and cannot delay a decision further.

27. The Tribunal finds there is no approved employer nomination to satisfy cl.186.233(3).

28. Therefore, cl.186.233 is not met.

29. 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.

30. Miss Liping Cai was a secondary applicant on the application for an Employer Nomination (Permanent) (Class EN) subclass 186 visa and sought to satisfy cl.186.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicant on the basis they did not satisfy cl.186.311. This clause provides as below. The secondary applicant lodged an application with the Tribunal to review the decision to refuse the Visa application.

    186.311
    The applicant:
    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

31. The secondary applicant made a combined application with the primary applicant and applied as the child and therefore as a member of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, an Employer Nomination (Permanent) (Class EN) subclass 186 visa. Therefore, the primary applicant is not a person who holds a subclass 186 visa. The secondary applicant is a  member of the family unit of the primary applicant, who does not hold a subclass 186 visa. The secondary applicant therefore does not satisfy cl.186.311.

32. The secondary applicants do not meet cl.186.311 and the Tribunal affirms the decision not to grant Miss Liping Cai a subclass 186 visa.

    DECISION

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

    De-Anne Kelly
    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.