CUI (Migration)

[2021] AATA 5410

CUI (Migration) [2021] AATA 5410 (24 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jiawei CUI

CASE NUMBER:  1824772

HOME AFFAIRS REFERENCE(S):          BCC2017/1800413

MEMBER:Antonio Dronjic

DATE:24 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 24 September 2021 at 12:19pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Marketing Specialist – subject of an approved nomination – judicial review of nomination application – Tribunal declined indefinite delay of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233
Mora v Minister for Immigration and Border Protection [2018] FCA 1819

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 15 August 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 May 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 (Cth) (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 Temporary Residence Transition stream, to work in the nominated position of Marketing Specialist (ANZSCO 225113). The delegate refused to grant the visa because the applicant did not meet cl.186.223 because the nomination application lodged by the applicant’s employer, Essnadel Pty Ltd, was refused by the Department on 17 July 2018.

5. The applicant applied to this Tribunal for review of the primary decision on 25 August 2018 and was represented in relation to the review by her registered migration agent. The applicant submitted a copy of the primary decision record with the review application.

6. On 19 July 2021, the Tribunal wrote to the applicant inviting comments on or response to the following information under s.359A:

   ·     Your visa application was refused by the Department on 15 August 2018, because the nomination mentioned in cl.186.223 has not been approved.

   ·     The decision not to approve the nomination by Essnadel Pty Ltd was made by the Department on 17 July 2018.

   ·     Essnadel Pty Ltd applied for review of this decision at this Tribunal on 27 July

   2018.

   ·     On 16 July 2021, the Tribunal affirmed the Department’s decision not to approve the nomination made by Essnadel Pty Ltd.

   This information, if accepted and relied upon by the Tribunal, would be the reason or
   part of the reason for the Tribunal to affirm the decision made by the Department to
   refuse you the grant of a subclass 186 visa. This is because one of the criteria
   contained within subclass 186, namely clause 186.223 requires that the nomination
   was approved by the Minister and that nomination has not subsequently been
   withdrawn.
   ….

7. On 9 August 2021, after the applicant was granted an extension of time to provide her comments on or response to the information contained in the Tribunal letter of 19 July 2021, the applicant’s representative responded by stating that the applicant has been working for Essnadel Pty Ltd as a Marketing Specialist for at least three years before she lodged the application for a Subclass 186 visa.

8. Relying on the authority in MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233, the Tribunal accepts that there is no minimum requirement for a response to s.359A invitation and that any reply directed to the information will constitute a “response”. Accordingly, the Tribunal accepts that the applicant responded to the information contained in s.359A letter.

9. On 10 August 2021, the Tribunal wrote to the applicant advising that it considered material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend the hearing on 23 September 2021.

10. On 14 September 2021, the applicant’s representative wrote to the Tribunal stating inter alia that:

    ‘the applicant has been worked in the field of marketing specialist or relevant occupation for more than three years before she applied the 186 visa in 2017. We understand the 457 temporary transition stream and the 186 direct entry will be both considered into assessment’.

11. The applicant appeared before the Tribunal on 23 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

12. In her evidence she confirmed that she received the Tribunal’s letter of 19 July 2021 and confirmed her understanding that that on 16 July 2021, the Tribunal affirmed the Department’s decision not to approve the nomination made by Essnadel Pty Ltd.

13. The Tribunal explain the requirements of cl.186.223 and noted that without having an approved nomination by Essnadel Pty Ltd, the applicant cannot be successful with her review application. The applicant stated that, last month, her employer lodged a judicial review application with the Federal Circuit Court, appealing the Tribunal’s decision of 16 July 2021.

14. The Tribunal noted that no documentary evidence was submitted to the Tribunal that the applicant’s employer commenced judicial review proceedings before the Federal Circuit Court. Although the applicant did not explicitly requested, the Tribunal considered the applicant’s implied request to delay finalising this matter until the Court makes its decision on the judicial review application having regard to the obligation of the Tribunal to conduct a mechanism of review that is fair, just, economical, informal and quick.

15. The Tribunal noted that, even if the proceedings are commenced before the Federal Circuit Court, it is unlikely that the Court hearing will be scheduled before 2023. It is unclear when judgment will be delivered by the Court. This is not a case where the Tribunal is being asked to adjourn the review to await an outcome which is imminent. In addition, there is no evidence before the Tribunal to suggest that the judgment would be favourable to the applicant in the present circumstances of this case.

16. The Tribunal notes that, if the applicant’s employer is successful in challenging the Tribunal’s decision of 16 July 2021 related to the nomination application, and the visa decision was based on the nomination decision, the visa decision could not stand (Mora v Minister for Immigration and Border Protection [2018] FCA 1819). The Tribunal acknowledges that the applicant would be required to commence a judicial review in respect of the visa refusal and meet the cost associated with lodging a separate judicial review application.

17. For the reasons stated above, the Tribunal decided not to delay making its decision until the Court makes its decision on the judicial review application.

18. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. 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 video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

20. 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.

21. 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 reg 1.13A and reg 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.

22. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 186.223 lodged Essnadel Pty Ltd on behalf of the applicant, has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that the applicant does not meet the requirements of clause 186.223 at the time of its decision.

23. 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.

    DECISION

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

    Antonio Dronjic
    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.