HAN (Migration)

[2019] AATA 2093

HAN (Migration) [2019] AATA 2093 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr BIN HAN
Ms MING JIE QUAN
Master AUSTIN XI HAN
Master ETHAN BING-CHEN HAN

CASE NUMBER:  1809185

HOME AFFAIRS REFERENCE(S):           BCC2017/1913827

MEMBER:Jennifer Cripps Watts

DATE:14 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 14 February 2019 at 10:26am

CATCHWORDS
MIGRATION – Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – nomination refused – visa refusal decision made too early – applicant denied natural justice – denied opportunity to withdraw visa application within 28 day timeframe – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 65
Migration Regulations 1994 (Cth), r 1.13, Schedule 2, cl 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 Home Affairs (the delegate) on 3 April 2018 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 for the visas on 30 May 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, the first named applicant (the applicant) is seeking the visa in the Direct Entry 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 relating to the applicant’s Subclass 186 visa application was refused and the applicant was not therefore the subject of an approved nomination. Tribunal records indicate the nominating company, Wanda One Sydney Pty Ltd (Wanda One), did not apply for Tribunal review relating to this matter.

6. On 3 April 2018 the applicant applied for Tribunal review, within time, and provided a copy of the delegate’s decision with their review application.  They provided their representative’s details in the review application.  At the time it was Ms Xinjing Liang and continues, at the time of this decision, to be the same migration agent.  Ms Liang is a registered legal practitioner. 

7. On 6 December 2018, the Tribunal sent the applicant, through Ms Liang, a ‘request for information’.  In the letter, this was included:

   ‘It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.

   Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.

   If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide evidence about this by 20 December 2018.’

8. The applicant’s migration agent, on 15 January 2019, requested a 14 day extension of time to provide information because she had only just ‘discovered the email tonight’ because she said it went into the firm’s junk email, referring to the request for information that was sent by the Tribunal on 6 December 2018, nearly six weeks prior.  Ms Liang also advised that the applicant was seeking for the Tribunal to review the Department’s decision making process, ‘not to review the merits of the visa application’.  The Tribunal considered the request and responded by saying that it was of the view that the applicant still had ample time to respond to the request for information as the hearing was around a month away.     

9. On 18 January 2019, the Tribunal sent an invitation in writing to the applicants to attend a scheduled hearing on 19 February 2019.  They were invited to provide any additional documents they would like considered.  In the invitation, the applicant is asked to respond and indicate whether he will attend the hearing. 

10. On 12 February 2019, the Tribunal received an email from the applicant’s migration agent.  She informed the Tribunal that the applicant ‘is outside Australia on that date’ (19 February 2019) and ‘therefore he will not attend the hearing’.  Ms Liang informed the Tribunal that she was instructed by the applicant that he wished for the Tribunal to ‘make a decision base (sic) on the documents.’  Ms Liang also advised that the applicant wished to have his matter remitted to the Department.

11. The Tribunal sent a response to this email on 13 February 2019 seeking clarification as to whether the applicant understood that the decision the Tribunal makes may be positive or unfavourable and whether, understanding that, he was waiving his right to a hearing.  He was reminded that it is also an option to withdraw his matter.  A response was received on the same date, from Ms Liang.  She advised that the applicant would not be withdrawing and said this:  ‘the Applicant wishes to NOT have a visa refusal decision on record and to have the opportunity to withdraw his visa application.’  There is more about this later, relating to the applicant’s claim that the delegate made the decision to refuse the visa a day early, before the 28 day timeframe provided for the in the natural justice letter, thereby denying the applicant the opportunity to withdraw his visa application, on the 28^th day.

12. The Tribunal sent another email to Ms Liang on 13 February 2019, advising that it was of the view that she had not fully responded to the earlier email confirming that the applicant understood the Tribunal decision may be positive or unfavourable and it was still unclear whether the applicant, on this understanding, was waiving his right to a hearing.  Ms Liang was informed in this email that the hearing would go ahead as scheduled at 9:30am on 19 February 2019.  The Tribunal also advised that as the applicant is overseas, he could attend by phone if he cannot appear in person and it was requested that a contact number be provided.

13. Ms Liang replied by email on 13 February 2019 and attached an email she had sent to the applicant, ‘billhan33’, at 1:45pm Sydney time on the same day.  It said, essentially, that he needed to confirm that he agreed to waive his right to a hearing on the understanding that the Tribunal would make a decision that may be positive or unfavourable.  A copy of an email in response, from billhan33, time and dated stamped 2:02pm on 13 February 2019 was provided that indicated the applicant had confirmed that he wanted the hearing cancelled and a decision made on the papers. 

14. The Tribunal is satisfied that the applicant has waived his right to a hearing and has proceeded to make a decision on the evidence before it.  The Tribunal checked the applicant’s movement records and confirmed that on 13 February 2019 the applicant was onshore.  He arrived on 20 January 2019 holding a UD-601 visitor visa that was granted offshore on 27 August 2018 and ceases on 20 April 2019.

15. Correspondence has been sent and received by the Tribunal to the applicant’s authorised representative, Ms Xinjing Liang, Migration Agent Registration Number 1174894, who is a registered legal practitioner working at Lin Tang and Co Lawyers in Sydney.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is, essentially, whether the position identifying the applicant is the subject of a nomination or review.

18. The applicant requested the Tribunal make a decision ‘on the papers’.  The Tribunal is satisfied that the applicant expressly waived his right to attend a hearing and give oral evidence.  Through his migration agent, he requested the hearing scheduled on 19 February 2019 be cancelled.  The Tribunal cancelled the hearing.

19. The Tribunal has considered the evidence provided to establish what, if any, of the information contained in the documents is relevant to the review of the decision to refuse his visa.

20. The applicant provided a statutory declaration sworn on 4 April 2018 in which he includes information about his background.  He indicates:

    a.When his visa was refused (on 3 April 2018) he obtained legal advice and was aware he could apply for review by the Tribunal or withdraw his visa application if the nominator, Wanda One, was not applying for review of the decision to refuse the nomination relating to the applicant’s visa application (that is the subject of this review). 

    b.That during the 28 days he was given to respond to the delegate’s natural justice letter dated 5 March 2018, advising him of the nomination refusal and seeking comment, he sought advice from his company’s human resource manager and ‘different immigration professionals’ because his Subclass 457 visa had ceased in February 2018 and he needed to apply for a new work visa in the event his Subclass 186 visa (that is the subject of this review) was refused or withdrawn.

    c.He was aware that the 28 days to respond ended on 2 April 2018, ‘being the last day of the Easter Holiday in 2018’.

    d.On 28 March 2018 he met with Lin Tang and Co Lawyers in Sydney, led by Mr Lin Tang who explained to him that he could apply for a Subclass 482 visa within his bridging visa validity period during the 28 days from the day of withdrawal of the Subclass 186 visa application. 

    e.That he would not be able to apply for the Subclass 482 visa while remaining onshore if his Subclass 186 visa is refused.

    f.He is aware of a s.48 bar that would mean he would have to depart Australia, disrupting his work, to apply for the Subclass 482 visa.

    g.That this was the advice that he got from Lin Tang Lawyers, during the meeting on 28 March 2018.

    h.The company he was working for supported his decision to withdraw his Subclass 186 visa application instead of applying for review of a refusal decision and he decided to withdraw his visa application.

    i.On 3 April 2018, the applicant appointed Lin Tang Lawyers and Ms Xinjing Liang assisted him with paperwork including an authorisation to withdraw the 186 visa application.

    j.At 2:35pm on 3 April 2018, the applicant was notified that his visa had been refused.

    k.He is shocked that ‘Home Affairs did not follow section 36 of AIA and make a decision to refuse my visa application on the last day of the legislative timeframe for a response.’

    l.He has suffered considerable prejudice due to a ‘procedural irregularity’.

    m.He seeks to ‘appeal the decision of Home Affairs to refuse my 186 visa application and to substitute the decision with an outcome of visa application be withdrawn’, so his ability to lodge an onshore application for a Subclass 482 visa will ‘not be jeopardised.

21. The applicant attaches documents indicating that he received the legal advice as described.  This included a statutory declaration sworn by Ms Xinjing Liang, Solicitor, on 12 April 2018, which includes the following:

    a.On 28 March 2018 she met with the applicant and principal solicitor at the firm at about 6:00pm.

    b.On 29 March 2018 they provided the applicant with advice, him in person, and his employer by phone.

    c.Four days later, after the Easter break, on Tuesday 3 April 2018, the applicant instructed her to withdraw his visa application.

    d.Ms Liang prepared a 956 appointment form and authorisation letter to withdraw the applicant’s 186 visa application and sent them to the applicant at 12:35am on 3 April 2018.

    e.At 2:30pm on 3 April 2018 the applicant instructed her to withdraw the visa application

    f.At 2:35pm the applicant informed her that his visa had been refused.

    g.The Department made the decision to refuse the visa ‘too early’ and the applicant was denied natural justice, that is, the opportunity to withdraw his visa application within the 28 day timeframe as allowed in the natural justice letter; referring to s.36 of the Acts Interpreter Act 1901 (relating to calculating time).

22. Some supporting documents were provided.  The Tribunal acknowledges this information, but does not consider it is relevant to the conduct of the review which is to consider the matter afresh and decide whether the applicant meets the primary criteria for the grant of the visa and whether the secondary applicants meet the secondary criteria.

23. The Tribunal has had regard to the evidence before it, including relevant matters contained in the delegate’s decision.

    Nomination of a position

24. 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.

25. 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.

26. The Tribunal informed the applicant in writing, on 6 December 2018, that it appeared he did not satisfy the criteria for the grant of the visa, specifically cl.186.233(3) that requires the Minister has approved the nomination (relating to the applicant’s 186 visa).  The nomination to which his visa relates was refused and is not awaiting review. 

27. On 6 December 2018, the Tribunal sent the applicant a ‘request for information’.  In the letter, this was included:

    ‘It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.

    Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.

    If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide evidence about this by 20 December 2018.’

28. The applicant has not provided any additional evidence in response of the kind requested addressing cl.186.233 criteria.

29. The Tribunal has considered relevant evidence when reaching its decision.  It is acknowledged that a claim has been made that the decision by the delegate to refuse the visa was made a day early, relating to the 28 days provided for in the natural justice letter that was sent advising the applicant that the nomination had been refused, and that applicant is of the view that this meant he missed an opportunity to withdraw his visa application.  The Tribunal does not have the power to correct defects in the Department’s decision making processes.  The matter before the Tribunal is a merits review, de novo, of a decision to refuse the applicant’s visa because he did not meet the primary criteria for the grant of the visa. 

30. On the evidence before it, the Tribunal finds that the applicant does not meet cl.185.233.

31. 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.

    Secondary applicants

32. Secondary applicants are required to meet the secondary criteria.  Relevantly, a secondary applicant must be a member of the family unit of a person who satisfies the primary criteria for the grant of a Subclass 186 visa.  The Tribunal has made findings that the primary applicant does not meet cl.186.233.  The secondary applicants made a combined application with the primary applicant.  However, there is no evidence before the Tribunal that the secondary applicants are members of the family unit of a person who holds a Subclass 186 visa.  On this basis, the secondary applicants cannot meet criteria cl.186.311 and therefore do not meet the criteria for the grant of the visa.

    DECISION

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

    Jennifer Cripps Watts
    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.