Fan (Migration)

[2018] AATA 5701

Fan (Migration) [2018] AATA 5701 (19 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Xing Fan
Ms Huini Xu

CASE NUMBER:  1703689

HOME AFFAIRS REFERENCE(S):           BCC2016/91639

MEMBER:Ian Berry

DATE:19 December 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 19 December 2018 at 1:06pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – sales and marketing manager – no approved nomination – not the subject of an approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A, 360, 363A
Migration Regulations 1994, r 1.13, Schedule 2, cl 186.233

CASES
Hasran v MIAC [2010] FCAFC 40

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

2. The applicants applied for the visas on 6 January 2016. 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 (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 (applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of sales and marketing manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(1) and (2) of Schedule 2 to the Regulations because the applicant’s nominated position was refused by the Department on 16 November 2016.

6. The applicant did not provide this Tribunal with a copy of the delegate’s decision.

7. A child Ziyi Fan born 19 December 2008, was mentioned in the nominator’s application for Employer Nomination for a Permanent Appointment made on 6 January 2016. That child was not referred to in the application for review. The Tribunal requested clarification for the applicant by telephone call with the applicant’s representative. His advice was that the application for review was correct, that is the child was not included as a secondary applicant in this review.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant has an approved nomination pursuant to clause 186.233, which has not been subsequently withdrawn.

    Section 359A Invitation to provide information

11. On 9 October 2018, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to provide information about whether the applicant has an approved nomination, in the nominated position of ‘sales and marketing manager’ with his current employer. The Tribunal invited the applicants to comment on information that it considered would be part of the reason for affirming the decision under review in writing.

12. The relevance of the invitation to the applicants is that if they do not have an approved nomination then it may be a reason or part of reason to refuse the applicants’ visa applications.

13. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or information were not provided in writing by 23 October 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

14. The applicants have not provided the information or provided any comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information or any comments.

    Nomination of a position

15. Clause 186.233 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 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.

17. The Tribunal made a decision to refuse the applicant’s employer’s nomination on 2 October 2018.

18. Therefore, cl.186.233 is not met.

19. 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.

20. The Tribunal must also affirm the decision to refuse to grant subclass 186 visas to the second visa applicant (the applicant’s wife) as she does not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary criteria on her own right

    DECISION

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

    Ian Berry
    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.