CHEN (Migration)

[2019] AATA 1944

CHEN (Migration) [2019] AATA 1944 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zhixi CHEN
Ms Kejia LIU
Mr Guanting CHEN

CASE NUMBER:  1724392

HOME AFFAIRS REFERENCE(S):           BCC2017/1421764

MEMBER:Peter Emmerton

DATE:21 February 2019

PLACE OF DECISION:  Adelaide

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

The Tribunal does not have jurisdiction in relation to the secondary applicants.

Statement made on 21 February 2019 at 1:26pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent)(Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Stream – refused application – nomination not approved – secondary applications offshore – no jurisdiction in relation to secondary applicants – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 338, 347, 359A
Migration Regulations 1994 (Cth), Schedule 2 cl 186.223, rr 1.13A, 1.13B, 5.19(3)(f)

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 5 October 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 19 April 2017. 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 Temporary Residence Transition stream, to work in the nominated position of Motor Mechanic ANZSCO 321211.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination had not been approved.

6. The applicant appeared before the Tribunal on 30 January via video conference to give evidence and present arguments. The Tribunal also received oral evidence from Mr Luke Mc Gee of the nominating entity, Trustee for Mc Court Group Pty Ltd. This was combined with the hearing for MRT file ref 1720202.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the nomination has been approved.

11. On 7 April 2017, the applicant’s sponsoring employer, The Trustee for Mc Court Group Pty Ltd applied for approval for a nomination for the position of Motor Mechanic ANZSCO 321211. Mr Zhixi Chen is the nominee for the position. On 21 August 2017 the Department refused the application on the basis the nomination did not satisfy r.5.19(3)(f) of the Regulations.

12. In a separate decision, the Department refused Mr Chen’s subclass 186 visa application because the nomination was not approved.

13. The Trustee for Mc Court Group Pty Ltd and Mr Chen applied to the Tribunal to review the department’s decisions.

14. On 30 January 2019 the Tribunal affirmed the decision of the Department refusing approval of the nomination of an appointment made by The Trustee for Mc Court Group Pty Ltd for the position of Motor Mechanic ANZSCO 321211.[1]

    [1] 1720202

15. On 4 February 2019 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised that the Tribunal had affirmed the decision of the Department refusing approval of the nomination of an appointment made by The Trustee for Mc Court Group Pty Ltd.

16. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the relevant nomination, they cannot satisfy the provision at clause 186.223 of Schedule 2 of the Migration Regulations.

17. The applicant was advised that if they cannot satisfy cl.186.223 the Tribunal would affirm the decision of the Department of Immigration and Boarder Protection refusing her the visa.

18. The applicant was invited to provide a written response by 18 February 2019. The letter advised the applicant that if they did not comment or respond within the period allowed or extended, the Tribunal may make a decision on the review without taking any further action.

19. The applicant responded to the Tribunal’s s.359A letter on 18 February 2019. He offered to provide further information. The Tribunal has not sought additional information in response to his letter as it is clear that the applicant cannot satisfy an essential criterion as the nomination is not approved.

    Nomination of a position

20. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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.

21. In addition, this criterion also requires that:

    ·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.

22. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 186.223 of Schedule 2 of the Regulations.

23. Therefore, cl.186.223 is not met.

24. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

25. The secondary applicants were offshore at the time of the application for review therefore a valid application for review by the Tribunal was not made as stipulated by ss.338 and 347 of the Act. The Tribunal therefore does not have jurisdiction in relation to the secondary applicants.

    DECISION

26. The Tribunal affirms the decision not to grant the applicant’s Employer Nomination (Permanent) (Class EN) visa. The Tribunal does not have jurisdiction in relation to the secondary applicants.

    Peter Emmerton
    Member

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)      The position is still available to the applicant.

    (5)      The application for the visa is made no more than 6 months after the Minister approved the nomination.