Cao (Migration)

[2018] AATA 4860

Cao (Migration) [2018] AATA 4860 (19 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Aidong Cao
Mr Yi Huang
Mr Zetian Huang
Mr Junzhe Huang

CASE NUMBER:  1717909

HOME AFFAIRS REFERENCE(S):           BCC2016/3973487

MEMBER:John Cipolla

DATE:19 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 October 2018 at 9:32am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – subject of an approved nomination – nomination approval refused – failure to respond to Tribunal letter – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19, 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 Immigration and Border Protection on 31 July 2017 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 25 November 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 the nominated position of Sales and Marketing Manager. 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 visas and found that the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination lodged by PTI E Business Pty Ltd was refused on 4 August 2017. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant is the subject of an approved nomination by the sponsoring business.

7. On 4 August 2017 a delegate of the Department refused to approve the nomination in relation to the applicant made by the nominating employer PTI E Business Pty Ltd.  The nominating business sought merits review with the Tribunal. The Tribunal dismissed the application for merits review lodged by the nominating business on 10 August 2018 as the nominating business failed to attend a scheduled hearing and no reason for the businesses non-attendance was provided to the Tribunal.

8. The applicant engaged a registered migration agent /solicitor during the review. On 31 August 2017 the applicant’s representative made a Freedom of Information request to the Tribunal. On 15 September 2017 the applicant’s representative was advised that all documents requested to be released under Freedom of Information would be released in full.

9. On 16 August 2018 the Tribunal wrote to the applicant inviting the applicant to comment on information that the Tribunal considered could be the reason, or part of the reason for affirming the decision under review. The letter made reference to the dismissal of the nominating businesses merits review application which had been dismissed by the Tribunal on 10 August 2018. The letter also noted that cl.186.233 requires that the nomination made in relation to the applicant by the nominating employer had been approved by the Minister.

10. The applicant was required to respond to the Tribunal’s letter by 30 August 2018. On 16 August 2018 the Tribunal received an email from the applicant’s representative stating:

    “Please be informed that we have only received instructions from the review applicant to obtain a copy of the review application through Freedom of Information. We have since forwarded a copy of your letter (referring to the Tribunals letter of 16 August) to the review applicant for their records. We are currently awaiting further instructions if the review applicant wishes to engage our office to assist them in this application and will notify your office of the same once she has responded to our email.  The applicant failed to respond to the Tribunal’s letter by 30 August 2018 and as a consequence the Tribunal is able to proceed to decision having regard to the evidence before it.

11. As at 19 October 2018 no response has been provided to the Tribunal’s letter of 16 August 2018 within the requisite period and in these circumstances the Tribunal is able to proceed to decision on the review.  Indeed no further information has been forthcoming in the intervening 2 month period.

    Nomination in of a position

12. 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

13. 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.

14. As has been noted above the nomination lodged by PTI E Business Pty Ltd was refused by a delegate of the Department of Immigration on 4 August 2017. The application for merits review lodged by PTI E Business Pty Ltd was dismissed by the Tribunal on 10 August 2018. The evidence before the Tribunal indicates that the applicant is not the subject of approved nomination by the nominating employer and the applicant on this basis is unable to meet the requirements of cl.186.233 of the Migration Regulations.

15. Therefore, cl.186.233 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 applicants Employer Nomination (Permanent) (Class EN) visas.

    John Cipolla
    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.