GAO (Migration)

[2018] AATA 4284

GAO (Migration) [2018] AATA 4284 (25 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ZHIHONG GAO

CASE NUMBER:  1725010

DIBP REFERENCE(S):  BCC2017/2297357

MEMBER:Mr S Norman

DATE:25 September 2018   

PLACE OF DECISION:  Sydney

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

Statement made on 25 September 2018 at 11:40am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – approval of nomination – nomination refused – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 186.223, 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 13 October 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for the visa on 28 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 Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of a Sales and Marketing Manager (ANZSCO - 131112). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations (the nomination application had been refused by a Department delegate on 9 August 2017).

6. The applicant appeared before the Tribunal on 3 September 2018 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 his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the nomination application had been approved.

9. As noted above, the Tribunal hearing was scheduled for Monday 3 September 2018. On Friday 31 August 2018 (11.58am), a request was made to re-schedule the hearing. As the constituted Member was unavailable for the day, the applicant (by their agent) was only later advised (on Monday, 3 September 2018) that the request to re-schedule had been denied. However, on Friday 31 August 2018, the agent/applicant had also been advised that until further advice from the Tribunal, the scheduled hearing for Monday 3 September 2018 was to proceed.

10. At the hearing on Monday 3 September 2018, the applicant said he had only been given short notice this hearing was to proceed and he had ‘just come out of a meeting’. The agent said the applicant may have confused the present hearing for his application for a 600 visa. However, after viewing the Tribunal hearing invitation letter, and given the applicant had retained the services of an agent to advise him, the Tribunal believes it clear the present hearing related to the ‘Employer Nomination (Permanent) visa’ application.

11. The agent subsequently stated that some matters discussed at the hearing may not have ‘translated fully’ and or the applicant may not have been provided a full opportunity to set out his experience. However, substantial evidence of same was lodged (including on the day of the hearing), and the Tribunal was subsequently satisfied that same was discussed in an apparently meaningful way during the hearing.

12. That being said, the Tribunal understands it needs to give an applicant a real opportunity to provide evidence and submissions in support of their case (including at hearing). After discussing the material claims, and given the Tribunal is satisfied the applicant was able to meaningfully respond to the matters discussed, the Tribunal is satisfied the applicant was provided a real opportunity to put evidence and submissions (including at hearing).  

    Nomination of a position

13. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii). 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.

14. As noted above, on 9 August 2017 the nomination application had been refused by a Department delegate. On 16 August 2017, the Department wrote to the applicant seeking comment relating to the refusal of the nomination application. On 28 June 2017, the applicant replied in writing and asked the decision be made. As the nomination application had been refused, the Department delegate was not satisfied the applicant met cl.186.233(3). The delegate then refused the application for the Employer Nomination Scheme (subclass 186) visa.

15. Next, the delegate assessed the application within the other streams in this visa subclass. Regarding the Temporary Residence Transition Stream, the delegate noted that pursuant to cl.186.223(1)(a), the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the nomination only sought to meet the requirements of r.5.19(4), the applicant was not found to meet the criteria in cl.186.223. Next, the delegate assessed the application under the Agreement stream. However and again, the nomination only sought to meet the requirements of r.5.19(4), and therefore, the applicant did not meet the criteria in cl.186.242.

16. The delegate then refused the visa application for a Employer Nomination Scheme (subclass 186) visa.

17. Evidence lodged with the Tribunal included migration agent submissions dated 27 August 2018[1] (indicating the applicant was then in China); that the applicant is of ‘exceptionally high quality’; and the resume of the nominee. Also lodged were photocopies of the face-page of passports;[2] certification of no criminal records;[3] a translated marriage certificate;[4] evidence of household register;[5] a document of ‘Agreement’ dated 27 June 2017;[6] and evidence of qualifications.  Also lodged was a letter dated 24 August 2018,[7] principally setting out the applicant’s prior work experience.    

    [1] Tribunal – from folio 62.

    [2] Tribunal – from folio 59.

    [3] Tribunal – from folio 56 (reverse side).

    [4] Tribunal – folio 47.

    [5] Tribunal – from folio 44 (reverse side).

    [6] Tribunal – from folio 41.

    [7] Tribunal – folio 67 (also see folio 58).

18. At the Tribunal hearing, the applicant provided information about his work and education experience, including that his linguistic degree enabled him to work in the air conditioning (installation) industry in China, and given the number of English language speaking clients seeking to purchase such goods from China.

19. By s.359A letter dated 10 September 2018 (dispatched by email to the authorised recipient), the Tribunal wrote to the applicant and advised that on 7 September 2018, the Tribunal affirmed the Department decision not to approve the nomination in relation to him made by his nominating employer (Baratech Pty Ltd). The applicant was advised that subject to his comments, this information may be the reason or part of the reason for affirming the decision under review. The applicant was requested to respond in writing by 24 September 2018. No material response was received by the Tribunal within the time provided.

20. That being said, as the nomination approval application has been refused, the Tribunal is not satisfied the applicant meets cl.186.233(3); and does not satisfy cl.186.233. As the applicant has not met relevant criteria for the grant of that visa, the Tribunal has affirmed the decision not to grant the applicant an Employer Nomination Scheme (subclass 186) visa.

21. 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.

    DECISION

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

    Mr S Norman
    Member