CHEN (Migration)

[2018] AATA 5704

CHEN (Migration) [2018] AATA 5704 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MING CHEN

CASE NUMBER:  1714006

HOME AFFAIRS REFERENCE(S):           BCC2016/3254589

MEMBER:Jennifer Cripps Watts

DATE:18 December 2018

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 18 December 2018 at 6:10pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – newspaper or periodical editor – request for adjournment refused – nominating business lodged judicial review in the Federal Circuit Court (FCCA) – not the subject of an approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.13, 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 15 June 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 30 September 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Newspaper or Periodical Editor, ANZSCO 212412.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.

6. The applicant appeared before the Tribunal on 15 November 2018 to give evidence and present arguments.  It was a combined hearing with the nominating business, Sydney Today Pty Ltd (Sydney Today) - Tribunal file number 17109670.  The Tribunal also received oral evidence from an authorised representative of Sydney Today, Mr Zhang Dapeng.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant was represented in relation to the review by his 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 applicant is the subject of an approved nomination and meets cl.186.233 of Schedule 2 of the Regulations.

10. On 30 November 2018, the Tribunal affirmed the delegate’s decision to refuse the nomination relating to the applicant’s Subclass 186 visa that is the subject of this review.

11. On 3 December 2018, the Tribunal sent the applicant a s.359A letter informing him that the Tribunal had affirmed the decision to refuse the nomination for him in the position of Newspaper or Periodical Editor. He was informed that the information was relevant because one of the requirements for the grant of his Subclass 186 visa is that he must be the subject of an approved nomination. The applicant was invited to comment on or respond to this information no later than 17 December 2018 or within an extended time period requested by him and granted by the Tribunal.

12. The applicant responded to the s.359A letter at 6:30pm on 17 December 2018. He informed the Tribunal that Sydney Today, the nominating business relating to the applicant’s matter, has commenced judicial review in the Federal Circuit Court (FCCA) of the decision the Tribunal made on 30 November 2018. A letter from Sydney Today’s law firm, ProActive Legal, was attached, confirming that an application for judicial review was lodged on 17 December 2018.

13. In the s.359A response received on 17 December 2018, the applicant requested that his matter be adjourned until the proceedings before the Court (relating to Sydney Today) are determined.

14. The Tribunal has considered the request for an adjournment in the applicant’s matter.  It is accepted that Sydney Today has lodged an application for judicial review in the Federal Circuit Court on 17 December 2018.  Until such time as there is a resolution in Sydney Today’s matter, the applicant is not the subject of a nomination relating to his visa application and the outcome may not be in his favour, in any event.  The Tribunal cannot know how long it will take for Sydney Today to have its matter heard and determined.  It is not unreasonable, given the current delays in matters being listed in the Federal Circuit Court that this member is aware of, that it could be more than a year and possibly more than two years.  The Tribunal does not consider it reasonable to grant an adjournment for an indeterminate extension of time when there is a high likelihood that it would be a very significant amount of time before Sydney Today’s application before the FCCA is determined.

15. The Tribunal has considered the request for adjournment, but does not consider it reasonable that it should be granted, in the circumstances.

    Nomination of a position

16. 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.

17. 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.

18. The Tribunal finds that at the time of this decision the applicant is not the subject of an approved nomination and he does not satisfy cl.186.233(3). Therefore, cl.187.233 is not met.

19. 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

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

    Jennifer Cripps Watts
    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.