Gao (Migration)

[2020] AATA 2378

Gao (Migration) [2020] AATA 2378 (25 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fang Gao

CASE NUMBER:  1725321

HOME AFFAIRS REFERENCE(S):          BCC2017/2209599

MEMBER:Karen McNamara

DATE:25 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 25 June 2020 at 9:07am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Sales and Marketing Manager – subject of an approved nomination – 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 (the delegate) on 27 September 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 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 case, Mr Fang Gao (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Business Development Manager in the occupation of Sales and Marketing Manager (ANZSCO 131112).

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations which required Mr Fang Gao to be the subject of an approved nomination. The delegate found that the associated nomination (lodged by Chengdu Di’Ao International Investment Pty Ltd) was refused by a delegate of the Minister for Immigration and Border Protection on 10 August 2017.

6. The applicant applied to the Tribunal on 17 October 2017 for review of the delegate’s decision.

7. On 28 April 2020, Mr Fang Gao appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Shu Su (the nominator) in the related matter for the nomination application (AAT Case file 1720052). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.186.223.

    ADVERSE INFORMATION – Invitation to comment

12. At the hearing, the applicant was advised in accordance with s.359AA of the Act, that Department records show that during the period 22 June 2014 to 22 June 2017, he was offshore for a total period of 825 days (approx. two years and 3 months) and that he was in Australia during this period for 271 days (approx. 9 months).

13. The applicant was told that this information is relevant, because Department movement records show that the nominee was absent from Australia for over two years in the period of three years immediately before the nominator made the application and as such the nominee may not have been employed in the position in respect of which he held the subclass 457 visa, for a total period of at least 2 years and the employment in the position was not undertaken in Australia. If the Tribunal relies on that information, it may not be satisfied that the nomination application meets the requirements of regulation 5.19(3)(c).

14. The applicant was invited to comment on or respond to this information. Mr Gao advised the Tribunal that he had misunderstood the question when asked by the Tribunal if he had been absent from Australia during this period. Mr Gao advised the Tribunal that he would respond in writing. The Tribunal advised the applicant that it would put this information in writing to him and provide him with opportunity to respond under s 359A of the Act.

15. On 28 April 2020, the Tribunal wrote to the applicant under ss 359A and 359(2) of the Act. The invitation seeking comment and further information from the applicant and nominator. The invitation to the applicant stated the following;

    ‘At the hearing of 28 April 2020, the Tribunal put to you information under the
    provisions of s 359AA of the Migration Act. The information relates to Department of
    Immigration movement records which show that during the period 22 June 2014 to 22
    June 2017, you were offshore for a total period of 825 days (approx. two years and 3
    months) and that you were in Australia during this period for 271 days (less than a
    year approx. 9 months).

    At the hearing the Tribunal explained to you that the Tribunal must be satisfied under r.5.19 (3) (c) (i)

    (A) in the period of 3 years immediately before the nominator made the application, the holder of the subclass 457… visa identified in subparagraph (a) (ii) has;

    (I) held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II) been employed in the position in respect of which the person holds the Subclass 457…visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B) - the employment in the position has been full time and undertaken in Australia.

    The above information is relevant, because Department movement records show that
    you were absent from Australia for over two years in the period of three years
    immediately before the nominator made the application and as such you may not have
    been employed in the position in respect of which you hold the subclass 457 visa, for a
    total period of at least 2 years and the employment in the position was not undertaken
    in Australia.

    If the Tribunal relies on that information, it may not be satisfied that the nomination
    application meets the requirements of regulation 5.19(3)(c).

    The Tribunal may then find that the nominator does not meet the requirements for
    approval of the nomination and the decision under review may be affirmed.

    At the hearing the Tribunal invited you to comment on this information. You told the
    Tribunal that you wished to respond orally and in writing. At the hearing you told the
    Tribunal that your employer requested you to work in China during the period 22 June
    2014 to 22 June 2017. The Tribunal invites you to comment on or respond to this
    information.’

16. The Tribunal sought the applicant’s response by 12 May 2020. The applicant responded by way of a written submission to the Tribunal on 11 and 12 May 2020.

    Nomination of a position

17. 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.

18. 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.

19. The applicant attended the hearing via telephone on the 28 April 2020. The Tribunal explained that, to meet cl.186.223, the applicant must be the subject of an approved nomination. It explained that the review of the nomination refusal must be finalised before the decision in this case could be made. The Tribunal advised that it would write to the applicant advising of the decision.

20. On the 5 June 2020, the Tribunal affirmed the decision refusing the approval of the nominated, made by Chengdu Di’Ao International Investment Pty Ltd in respect of the applicant. As the application for the nominated position has not been approved, the applicant does not satisfy cl.186.223(2) and as such cl.186.223 is not met.

21. On 9 June 2020, the Tribunal wrote to the applicant pursuant to s.359(A) of the Migration Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to his comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the delegate’s decision not to approve the nomination made by Chengdu Di’Ao International Investment Pty Ltd in respect to the applicant. The Tribunal explained that this was relevant to the applicant meeting cl.186.223(2) which requires the nomination to be approved. As the nomination has not been approved, cl.186.223(2) is not met.

22. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 23 June 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement they might otherwise have had under the Act.

23. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, pursuant to s.359C(2) the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

24. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.186.223(2) of Schedule 2 to the Regulations.

25. As the applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 of Schedule 2 to the Regulations is not met.

26. 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

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

    Karen McNamara
    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.