Goh (Migration)

[2017] AATA 910

Goh (Migration) [2017] AATA 910 (22 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Han Yeong Goh
Mrs Tzu-Min Kao
Master Ee-Qi Goh
Miss Ee-Zhen Goh

CASE NUMBER:  1516292

DIBP REFERENCE(S):  BCC2015/1862703

MEMBER:R. Skaros

DATE:22 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 22 May 2017 at 9:23am

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Director and Administration Manager (Minister of Religion) – Nomination not approved

LEGISLATION

Migration Act 1958, ss 65, 359A

Migration Regulation 1994, Schedule 2, cl 186.233, r 5.19

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 on 23 November 2015 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 to the Department of Immigration for the visas on 29 June 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Director and Administration Manager (Minister of Religion – 272211). 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 visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination of the position relating to the applicant was not approved.

6. The applicants appeared before the Tribunal on 10 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

9. The issue in the present case is whether the applicant meets cl.186.233.

   Nomination of a position

10. 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.

11. 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.

12. An application for approval of the nominated position in relation to the applicant was made by the Zongde Buddhist Temple Australia. The Department refused that nomination and the Zongde Buddhist Temple applied to the Tribunal for review of that decision. On 2 May 2017 the Tribunal affirmed the Department’s decision not to approve the nomination.

13. On 5 May 2017 the Tribunal wrote to the review applicants in accordance with the requirements of s.359A, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the Tribunal’s decision to affirm the review of the nomination, which the Tribunal explained is relevant to the requirement in cl.186.233(3) which requires the relevant nomination to be approved.

14. On 9 May 2017 the Tribunal received a response from the representative advising that the nominator and the applicants would be making a request to the Minister to intervene.

15. On the evidence before it, the Tribunal finds that the nomination has not been approved. The applicant therefore does not meet the requirements in cl.186.233(3) and does not meet cl.186.233 as a whole. 

16. 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.

17. The secondary applicants applied on the basis of being members of the first named applicant’s family. As the Tribunal has found that the first named applicant does not meet a requirement for the visa, and as there is no evidence to indicate that any of the secondary applicants meet the primary criteria for the visa, the Tribunal must also affirm the decision in respect of the secondary applicants.

18. The Tribunal acknowledges the submission that the applicants would be making a request for the Minister to intervene and considers this to be a matter for the applicants. 

    DECISION

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

    R. Skaros
    Member