CHEN (Migration)

[2018] AATA 5321

CHEN (Migration) [2018] AATA 5321 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Guiling CHEN
Mr Jianwu Su
Mr Hongliang Su
Mr Hongtai Su

CASE NUMBER:  1730733

DIBP REFERENCE(S):  BCC2016/2976227

MEMBER:Mr S Norman

DATE:29 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 29 October 2018 at 9:10am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Corporate General Manager – subject of an approved nomination – nomination application refused – 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 6 December 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 7 September 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). The Department decision had been lodged with the Tribunal.

2. 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 Agreement stream.

3. 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 Corporate General Manager (ANZSCO: 111211). 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.

4. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because on 1 November 2017, the Department refused the nomination lodged by Greenwest Holdings P/L (the applicant’s nominator).

5. The applicants appeared before the Tribunal on 14 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Matthew John O’Malley (representing the nominating employer). The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant satisfies cl.186.233 of Schedule 2 to the Regulations, and whether the nomination lodged by Greenwest Holdings P/L (the nominating employer) has been granted.

   Nomination of a position

8. 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).

9. 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.

10. On 1 November 2017, the Department refused the nomination lodged by Greenwest Holdings P/L (the applicant’s nominator). Also on 1 November 2017, the Department notified the applicant of the nomination refusal and provided him 28 days in which to comment. As at the date of the delegate’s decision (6 December 2017) no response had been received by the Department. As the nomination application had been refused, the applicant had failed to meet cl.186.233 of the Regulations and the visa had been refused. The delegate then found that as cl.186.233 had not been met, the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa was not satisfied.

11. Next, the delegate assessed the applicant’s claims under the Temporary Residence Transition stream. Under cl.186.223(1)(a) of the Regulations, the position to which a visa application relates must have been nominated and approved under reg.5.19(3). Since the correlating nomination did not seek to meet the requirements of, and was not assessed under, reg.5.19(3), the applicant did not meet cl.186.233. Next, the delegate assessed the applicant’s claims under the Agreement stream. As the correlating position was not nominated by an employer in accordance with a Labour agreement, the applicant did not meet cl.186.242.

12. Next, the delegate noted that an application for an Employer Nomination Scheme (subclass 186) visa, was made on behalf of the applicant’s family members. The delegate noted that family members may be granted a visa if certain criteria were met. Clause 186.311 stated:

    186.311

    The applicant:

    (a)is a member of the family unit of a person (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.

13. The delegate then noted that as none of the secondary applicants were a member of the family unit of the person who held a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant that visa, cl.186.311 was not satisfied. Therefore, the delegate refused the application for the visa.

14. The Tribunal conducted a hearing in this matter on 14 September 2018. However, on 12 October 2018 the Tribunal affirmed the Department's decision not to approve the nomination in relation to the applicant made by their nominating employer (Greenwest Holdings Pty Ltd).

15. By s.359A letter of 12 October 2018 (dispatched by email to the applicant’s authorised recipient), after advising the applicant about the Tribunal decision not to approve the nomination application of Greenwest Holdings Pty Ltd, the Tribunal advised that this information was relevant because cl.186.233(3) requires that the nomination made in relation to the applicant by their nominating employer had been approved. Further, that if the Tribunal relies on this information it may find that the nomination in relation to the applicant had not been approved and consequently the decision under review would be affirmed. The applicant was invited to give comments on or respond to the above information in writing; and the comments or response should be received by 26 October 2018. As at the time and date of this decision, no comments or response had been lodged with the Tribunal.

16. Based on the above information, the Tribunal is satisfied the nomination application by Greenwest Holdings Pty Ltd, was refused by the Tribunal on 12 October 2018. As a consequence, the Tribunal is not satisfied the applicant has met cl.186.233(3).

17. As did the delegate, the Tribunal notes that as none of the secondary applicants were a member of the family unit of the person who held a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of that visa, cl.186.311 was not satisfied.

18. Accordingly, the Tribunal affirms the decisions to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas. 

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 decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Mr S Norman
    Member