CHEN (Migration)

[2021] AATA 103

CHEN (Migration) [2021] AATA 103 (19 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zhiyong CHEN
Miss YI SONG

CASE NUMBER:  1811682

HOME AFFAIRS REFERENCE(S):          BCC2017/1118830

MEMBER:Karen McNamara

DATE:19 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 19 January 2021 at 12:11pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – subject of approved nomination – refusal of related position nomination affirmed on review – extension of time pending employer’s application to Federal Circuit Court not granted – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 362A
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223(2), 186.311
Administrative Appeals Tribunal Act 1975 (Cth), s 2A

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 Home Affairs on 19 April 2018 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 22 March 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 Mr Zhiyong Chen (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Finance Manager (ANZSCO 132211).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations which required Mr Zhiyong Chen to be the subject of an approved nomination. The delegate found that the nomination lodged by Oz Finance Professional Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration and Border Protection on 7 March 2018.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 186.223(2) was not met and therefore the applicant did not meet cl.186.223 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant Miss Yi Song could not be granted a Subclass 186 visa, as she did not meet the secondary visa criterion (cl.186.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

8. The applicants applied to the Tribunal on 24 April 2018 for review of the delegate’s decision.

9. On 19 November 2020, the applicants represented by Mr Zhiyong Chen (referred to below as the applicant) appeared before the Tribunal via telephone to give evidence and present arguments. The Tribunal also received oral evidence from Mr Oliver Zhang (the nominator) in the related matter for the nomination application (AAT Case File 1808276). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

10. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

11. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant meets the requirements of cl.186.223.

    Nomination of a position

14. 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.

15. 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.

16. On the 4 December 2020, the Tribunal affirmed the decision refusing the approval of the nomination made by Oz Finance Professional Pty Ltd (the nominator) in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.186.223(2) and as such cl.186.223 is not met.

17. On 7 December 2020, the Tribunal wrote to the applicants pursuant to s.359(A) of the Migration Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Oz Finance Professional Pty Ltd, which the Tribunal explained was relevant to the applicant meeting cl.186.223(2) which requires the nomination to be approved. As the nomination has been refused, cl.186.223(2) is not met.

18. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 21 December  2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement they might otherwise have had under the Migration Act.

19. On 17 December 2020, the Tribunal received an email from the applicants newly appointed authorised representative advising of the appointment of a new representative and a request for access to written materials under s 362A of the Migration Act. The representative also sought an extension of time for the applicants to respond to the Tribunal’s invitation dated 7 December 2020.

20. On 18 December 2020, the Tribunal wrote to the applicant (dispatched by email to the authorised recipient) advising that an extension to respond to the Tribunal’s invitation of 7 December 2020 was granted to 4 January 2021.

21. On the 24 December 2020, the applicant’s authorised representative by email responded as follows:

    ‘ We refer to the above matter and your letter dated 18 December 2020.

    In response to the Tribunal’s invitation to the Applicants to provide further comments, we advise that following the Tribunal’s decision made on 4 December 2020, OZ Finance Professional Pty Ltd (the nominating employer) exercised its right to lodge with the Federal Circuit Court an application for judicial review on 24 December 2020, alleging that the decision was affected by jurisdictional error. The proceeding number is SYG2972/2020.

    Given that the Applicants’ matter and the nomination matter share basically the same merits and that the Tribunal’s decision on the nomination matter will be subject to the Court’s finding on judicial review, we believe that it would be fair, just and economical for the Tribunal to hold off on the decision on the Applicants’ matter to obviate the need for them to spend more costs and time on the anticipated judicial review proceedings.

    In light of the above, we respectfully request the Tribunal to take OZ Finance Professional Pty Ltd’s judicial review application into consideration and make the decision on the Applicants’ matter pending the outcome of judicial review.’

22. In relation to the applicants request that the Tribunal defer its decision on their review application, pending the outcome of the nomination review of Oz Finance Professional Pty Ltd before the Federal Circuit Court, the Tribunal is mindful that requests for deferrals must be considered carefully to determine whether they are reasonable or not: Minister for Immigration and Citizenship v Li [2013] HCA 18. The Tribunal has carefully considered the applicants request but declines to defer its decision in this matter pending the outcome of the Federal Circuit Court decision on the nomination.

23. In reaching this conclusion the Tribunal observes that the legislative objectives of the Tribunal as set out in section 2A of the Administrative Appeals Tribunal Act, directs that in carrying out its functions; the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal, quick and proportionate.

24. The Tribunal notes that the applicants are seeking to have the Tribunal defer its decision ‘to obviate the need for them to spend more costs and time on the anticipated judicial review proceedings.’ The Tribunal has considered the applicants request and has formed the view that the applicants’ personal reasons in seeking to delay this matter does not on balance outweigh the legislative objectives of the functions of the Tribunal.

25. Furthermore, the Tribunal considers that the placement of an applicant’s review on hold pending the outcome of a judicial review, does not contribute towards achieving the objectives of the functions of the Tribunal as per section 2A of the Administrative Appeals Tribunal Act. There is no indication of when a Federal Circuit Court decision is expected or indication that the Federal Circuit Court case will succeed and hence, the Tribunal does not consider it appropriate to delay a decision merely because the nominator has appealed to the Federal Circuit Court.

26. The Tribunal has also had regard to Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, in which the Courts held that the Tribunal is not obliged to indefinitely defer its decision-making processes to enable an applicant to try to meet the relevant visa criteria.

27. Having afforded consideration to the applicants’ request to defer making a decision until the outcome of the Federal Circuit Court decision on the nomination, and having regard to all relevant factors including the reasons for the request, the Tribunal finds that it cannot postpone indefinitely making a decision in relation to this application.

28. At the hearing of 19 November 2020, the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in his case, his visa application is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that his visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

29. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl 186.223(2) of Schedule 2 to the Regulations.

30. As the first named applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 of Schedule 2 to the Regulations is not met.

31. There is no evidence before the Tribunal to indicate that the second named applicant meets the primary requirements for grant of the visa.

32. In relation to the second named applicant Miss Yi Song, the Tribunal notes that cl.186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant 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.

33. As the applicant has not met the requirements for the grant of a Subclass 186 visa, and is not the holder of a Subclass 186 visa, it follows that the secondary applicant Miss Yi Song as a member of Mr Zhiyong Chen’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.186.311 of Schedule 2 to the Regulations.

34. The applicants have 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.

    DECISION

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

    Karen McNamara
    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.