DU (Migration)

[2020] AATA 306

DU (Migration) [2020] AATA 306 (13 February 2020)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ping Du

CASE NUMBER:  1723767

DIBP REFERENCE(S):  BCC2017/2114961

MEMBER:Lilly Mojsin

DATE OF DECISION:  13 February 2020

DATE CORRIGENDUM

SIGNED:08 April 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  In paragraph 12 the word nominee has been incorrectly stated and should be deleted. In paragraph 17 the words ‘Temporary Residence Transition stream’ have been incorrectly stated and should be replaced by the words ‘Direct Entry Scheme’.

Lilly Mojsin
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  PING DU
YU WEN
TIANYUAN WEN

CASE NUMBER:  1723767

HOME AFFAIRS REFERENCE:               BCC2017/2114961

MEMBER:Lilly Mojsin

DATE:13 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 13 February 2020 at 2:50 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Sales and Marketing Manager – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 26 September 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 15 June 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 review, 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 (ANZSCO 131112).

5. The delegate found that the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination lodged by N1 Holdings Limited was refused.

6. The applicant, appeared before the Tribunal, by telephone, in a joint hearing with N1 Holdings Ltd[1] represented by its Executive Chairman and CEO, Ren Hor Wong, on 6 February 2020, to give evidence and present arguments.

   [1] AAT 1921184

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Clause 186.233 as applicable in this review 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.

2. 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.

3. The delegate found that the nomination lodged by N1 Holdings Ltd, being the nomination referred to in cl.186.223, was refused by a delegate of the then Minister for Immigration and Border Protection. 

4. At the joint Tribunal hearing the Tribunal explained to the applicant that if the Tribunal affirmed the decision of the Delegate in the application of N1 Holdings Ltd [nominee] then the Tribunal would affirm the decision of the applicant’s application as cl. 186.233 would not be met.

5. The Tribunal [1721446] refused to approve the nomination, by N1 Holdings Ltd, for the position of Sales and Marketing Manager (ANZSCO 131112) on 13 February 2020.

6. As the nomination of the position was refused, therefore, cl.186.223 is not met.

7. In regard to the 2^nd named and 3^rd named applicants, cl. 186.311 provides:

   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.

8. As the 2^nd named and 3^rd named applicants are not 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, therefore cl.186.311 is not met by the 2^nd named and 3^rd named applicants.

9. 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

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

Lilly Mojsin
Member

ATTACHMENT A

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 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.