Fan (Migration)

[2019] AATA 3485

Fan (Migration) [2019] AATA 3485 (14 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ningning Fan
Mr Yongqing Zhou
Miss Yanru Zhou

CASE NUMBER:  1725310

HOME AFFAIRS REFERENCE(S):          BCC2015/4040033

MEMBER:Sheridan Lee

DATE:14 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 14 June 2019 at 3:00pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – approved nomination  – Federal Circuit Court appeal – decision under review affirmed

LEGISLATION

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

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 11 October 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. Ms Fan and her family applied for the visas on 24 December 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 in the Temporary Residence Transition stream, to work in the nominated position of Marketing Specialist.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination application lodged by the applicant’s employer, Z F Investments (Aust) Pty Ltd, was refused.

6. The applicant appeared before the Tribunal on 26 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Neil Feng, Director of Z F Investments (Aust).

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

8. 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

9. 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.

10. 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.

11. On 31 May 2019, the Tribunal wrote to the applicant, pursuant to s.359A of the Act. The letter invited the applicant to provide comment on or respond to certain information. The particulars of the information were:

    ·On 8 March 2017, a delegate of the Minister for Immigration rejected an application by Z F Investments (Aust) to nominate the position of Marketing Specialist. The applicant applied to the Tribunal for a review of that decision.

    ·On 31 May 2019, the Tribunal affirmed the decision not to approve the nomination.

12. The letter outlined that the information was relevant to the review because under cl.186.223 of the Regulations requires that the position specified in the visa application is the subject of an approved nomination.

13. It was also explained, that the 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 the grant of a Subclass 186 visa. The letter invited comments or a response by 17 June 2019.

14. On 14 June 2019, the applicant’s representative responded to the invitation. The response conceded that the Tribunal must affirm the decision in circumstances where there is no approved nomination. However, the letter advised that Z F Investments (Aust) have instructed that they lodge an appeal against the Tribunal’s decision with the Federal Circuit Court and requested that the Tribunal defer handing down a decision in the current matter pending the outcome of that appeal.

15. The Tribunal has responded to the applicant’s request to delay making a decision, explaining that the Tribunal does not speculate in relation to matters of appeal and considers that it is bound to deal with cases expeditiously and efficiently based on the information before it, as is required by the guidelines of good practice.

16. As the decision to refuse the nominating employer’s application was affirmed by the Tribunal on 31 May 2019, the Tribunal finds that the position is not the subject of a nomination approved by the Minister as required by cl.186.223(2).

17. 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.

18. As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second and third named applicants do not satisfy the secondary criteria for a grant of a visa, as per cl.186.311 on the basis that they are not a member of a family unit of a person who holds a subclass 186 visa.

    DECISION

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

    Sheridan Lee
    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.