Cheong (Migration)

[2019] AATA 2818

Cheong (Migration) [2019] AATA 2818 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Raymond Cheong
Ms Kwai Fung Kok
Ms Ruth Cheong
Ms Beth Cheong

CASE NUMBER:  1617097

HOME AFFAIRS REFERENCE(S):           BCC2015/3333573

MEMBER:Jennifer Cripps Watts

DATE:26 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 February 2019 at 12:24pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – nomination withdrawn – personal and medical issues – applicant can make own application for ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 186.311, 186.223, rr 1.13A, 1.13B

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 (the delegate) on 27 September 2016 to refuse to grant the applicants Employer Nomination (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 12 November 2015.  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, which he applied for on 12 November 2015, in the Direct Entry stream to work in the nominated position.  There are three secondary applicants who made valid combined applications as members of the family unit of the primary applicant:  Kwai Fung Kok, born 1965; Beth Cheong born 1998; and Ruth Cheong born 1995 (the applicant’s wife and children).

5. On 5 July 2016, the nomination application relating to the visa application that is the subject of this review was withdrawn by the nominator.  The applicant was sent a natural justice letter by the delegate on the same day inviting him to comment within 28 days.  An extension of time was sought and granted and a response was received.

6. On 27 September 2016, the visas were refused and, on 14 October 2016, the applicant lodged his review application, within time, and provided the Tribunal with a copy of the delegate’s decision to refuse the visas.

7. As the appointment to which the visa application related had been withdrawn and not approved, the delegate found that the applicant did not meet r.186.223.  Because the primary applicant’s visa was refused, the delegate found that the secondary applicants did not meet the criteria for the grant of the visas:  cl.186.311, which requires that they are members of the family unit of a person who has had a Subclass 186 visa granted.

8. On 4 February 2019, the Tribunal sent the applicant an invitation to attend a scheduled hearing on 26 February 2019.  A response was received, including written submissions and supporting documents.  The applicant indicated that he and his migration agent would attend the scheduled hearing by phone.

9. The applicant appeared before the Tribunal on 26 February 2019 by phone to give evidence and present arguments.  The applicant and his migration agent confirmed that it was not necessary to take oral evidence from the other applicants.

10. The applicants were represented in relation to the review by their registered migration agent, Mr Brian Kelleher of Ward Keller, Migration Agent Registration Number 0105197.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is, essentially, whether the position to which the application relates is the position nominated in an application for approval that identifies the applicant in relation to the position.  In this case, the Tribunal must be satisfied there is a nomination relating to the applicant’s Subclass 186 visa application that is the subject of this review or a nomination review pending.

13. The Tribunal has had regard to the oral and documentary evidence, including matters raised in the delegate’s decision.

14. The applicant has also requested that the Tribunal refer his matter to the Minister for intervention and submissions were provided supporting the request.  This is discussed later.

    Nomination of a position

15. Clause 186.223 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.

16. 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.

17. On 5 July 2016 the nomination application relating to the applicant’s Subclass 186 visa application, made on 12 November 2015, was withdrawn.  It is a requirement for the grant of the visa that the position to which the application relates be the subject of a nomination.

18. On 12 December 2018, the Tribunal sent the applicant a ‘request for information’.  In the letter, this was included:

    ‘It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.

    Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.

    If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide evidence about this by 7 January 2019.’

19. Written submissions from the applicant’s migration agent dated 8 January 2019, and additional documentary evidence, was provided in response to the Tribunal’s letter.  The  submissions had attached documents relating to personal and medical circumstances of the applicants in support of a request that the Tribunal refer the matter to the Minister for intervention in the event of an unfavourable decision.  No evidence was received that indicates the applicant has a nomination or that there is a pending review of a nomination refusal relating to the visa that is the subject of this review.  It is not in dispute, and has been confirmed by the applicant in the submissions, that he does not have a nomination. 

20. In the written submissions background is provided relating to the personal and medical issues of the applicant and his family members.  It is acknowledged the applicant applied for a Subclass 186 visa (the visa that is the subject of this review) under the nomination of Supreme Care Company Pty Ltd and that the nomination was withdrawn.  The Tribunal is informed in the submissions that the applicant accepts that ‘the tribunal’s affirmation of the refusal decision is inevitable.’  The applicant submits ‘compelling and compassionate’ circumstances exist that fall within the guidelines for intervention by the Minister under s.351 of the Act and requests that the Tribunal refer the matter to the Minister for these reasons.  The Tribunal discussed this with the applicant at the hearing.

21. In reaching its decision, the Tribunal has had regard to relevant facts and matters regarding whether or not the applicant has a nomination relating to his visa application.

22. The Tribunal finds, on the evidence, that there is no nomination relating to the applicant’s Subclass 186 visa application and no nomination refusal decision review pending. 

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 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.

25. The secondary applicants must be members of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa and have made a combined application.  The applicant has not satisfied the primary criteria and the secondary applicants cannot therefore meet the requirements for the grant of their visas:  cl.186.311.

    Ministerial Intervention

26. In written submissions to the Tribunal, the representative asked the Tribunal to recommend Ministerial Intervention in case of an unfavourable decision, which they said they considered to be ‘inevitable’ because there is no nomination relating to the applicant’s Subclass 186 visa application. Ministerial intervention is not compellable and it is discretionary. 

27. In the Tribunal’s view, the supporting documents that have been provided include highly sensitive, personal and medical information relating to the applicants, in particular the applicant, the applicant’s wife and their eldest daughter.  The Tribunal has had regard to the information provided, but for the sake of discretion and propriety has elected not to disclose the information in this decision.

28. Under the Ministerial guidelines, the Tribunal may refer a case to the Department if the Tribunal member believes there are issues involved that fall within the unique or exceptional circumstances described in section 4 of the guidelines.  The Tribunal has carefully considered the submissions but has decided not to make a specific recommendation of referral.  As there will be an appropriate existing decision in the applicant’s case from the Administration Appeals Tribunal (Migration and Refugee Division), the applicant will be able to make a direct request to the Department for Ministerial intervention and have the request assessed against the Ministerial guidelines if he chooses to.

    DECISION

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

    Jennifer Cripps Watts
    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 (Temporary Work (Skilled)) 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.

    (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.