Chen (Migration)

[2018] AATA 2058

Chen (Migration) [2018] AATA 2058 (16 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Cuiqin Chen
Mr Mingqiang Chen
Mr Qinglin Chen
Mr Honglin Chen

CASE NUMBER:  1728898

DIBP REFERENCE(S):  BCC2016/3550302

MEMBER:Mr S Norman

DATE:16 April 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 16 April 2018 at 11:45am 

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – Sales and Marketing Manager – Not the subject of an approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A, 359C, 360, 363
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.233, 186.311

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 7 November 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 October 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 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 principally because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination application lodged by EXCELL Window P/L (the nominator) was refused on 31 August 2017.

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

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

   The Tribunal’s s.359A letter

8. By letter of 27 March 2018 (dispatched by email to the applicant’s authorised recipient), the Tribunal wrote to the applicant and advised that subject to their comment, the following information may be the reason or part of the reason for affirming the decision under review. The information was that the application for approval of the nominator (EXCELL Window P/L) was refused by the Department delegate and the related merits review application was refused by the AAT. The applicant was further advised this meant the nominator’s application for the nominated position had not been approved. The applicant was then requested to comment in writing by 10 April 2018. No response was received by the Tribunal at the time and date of this decision.

9. Section 360 of the Act states inter alia the “Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments”. However, s. 359C(1) of the Act provides that if a person fails to respond to a s.359 letter, the Tribunal may make a decision on the review without taking any further action to obtain the information. In the circumstances of this case, given no response was received to the Tribunal’s s.359A letter, and given no material evidence was otherwise lodged with the Tribunal, and given the applicant was made aware of the deficiencies in the application, including at the time of the delegate’s decision, I have decided to make a decision on the review without taking any further action to obtain the information.

10. Further, the Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act in order to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. I have also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment (something that was not requested in this case), and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

11. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the criteria for the grant of the visa is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant. The Tribunal has also had regard to the fact that the visa application was refused by the Department on 7 November 2017, and also to the above reasoning in paragraph [9]. The Tribunal also notes the applicant has been aware for over five months of the delegate’s reasons for refusing the application.

12. In these circumstances, and based on the evidence set out herein, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant meets the requirements for the grant of the visa. The Tribunal has decided not to delay its decision any further.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant meets cl 186.233. That stated:

    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 the 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.

    Nomination of a position

14. 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). 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.

15. As referred to herein, the nomination application lodged by EXCELL Window P/L (the nominator) was refused on 31 August 2017. That application had nominated Cuiqin CHEN (DOB 29/08/1971), for the position of Sales and Marketing Manager (ANASCO – 131112). An invitation to comment was issued by the Department and later, the Tribunal. No response was received by the Department or the Tribunal. That being said, as the nomination has been refused, cl 186.233 is not met.

16. Accordingly, the applicant does not satisfy the requirements in cl 186.233; and the applicant does not satisfy the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa.

    Other visa streams: 

17. Next, the Tribunal must consider other streams within the visa class. That being said, all primary applicants must meet common criteria and meet the criteria in one of three alternative streams:

    ·     the Temporary Residence Transition stream;

    ·     the Direct Entry stream; or

    ·     the Agreement Stream.[6]

    [6] Note to Division 186.2.

18. The Tribunal notes 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

    Secondary applicants:

19. Regarding family members (secondary applicants), cl 186.311 stated:

    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.

20. The secondary applicants have made valid combined applications with the primary applicant (Ms Cuiqin CHEN). However, no claim was made the secondary applicant/s would independently satisfy the criteria for the grant of the visa. Thus, as the primary applicant does not satisfy the primary criteria for the grant of the visa, the secondary applicants do not meet the secondary criteria for the grant of the visa.

21. Therefore, cl.186.233 is not met and the applicants do not meet the primary criteria for the Direct Entry Stream.

22. As stated above, 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

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

    Mr S Norman
    Member