He (Migration)

[2018] AATA 5581

He (Migration) [2018] AATA 5581 (27 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Liang He
Ms Xiaomin Zhou
Master Zhanhao He
Master Yuzhou He

CASE NUMBER:  1727243

HOME AFFAIRS REFERENCE(S):           BCC2017/2271539

MEMBER:Danielle Galvin

DATE:27 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 27 November 2018 at 10:26am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Chief Executive or Managing Director – pending judicial review of nomination decision – Tribunal proceed to determination – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.233, 186.311

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 30 October 2017 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 27 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, the first named and primary applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Chief Executive or Managing Director (ANZSCO 111111).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 in of Schedule 2 to the Regulations which required him to be the subject of an approved nomination by an approved nominator. The delegate found that the applicant did not meet this criterion as the nomination of him by SHUNKANG INVESTMENT AUST PTY LTD had been refused by the Department on15 August 2017.

6. The Tribunal received a review application from the applicant on 6 November 2017, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Chit Thian Chua, as his representative and authorised recipient for correspondence for the purpose of the review. The applicants were represented in relation to the review by their registered migration agent.

7. On 3 September 2018 the Tribunal affirmed the decision of the Department to refuse the nomination made in relation to the applicant by SHUNKANG INVESTMENT AUST PTY LTD.

8. On 13 September 2018 the Tribunal wrote to the applicant via his agent, pursuant to s.359A of the Act, inviting him to comment on or respond to this information. The Tribunal advised the applicant that as it had affirmed the Department’s decision to refuse the nomination made by SHUNKANG INVESTMENTS AUST PTY LTD, there was currently no approved nomination for him by that organisation. The Tribunal advised that it considered that this information was relevant to the review as it indicated that the applicant was not currently the subject of an approved nomination made by the same organisation that had originally nominated him, and that if the Tribunal formed this view, then it would find that he did not meet cl.186.233. The Tribunal advised the applicant that such a finding would be reason (or part of the reason) to affirm the decision to refuse a subclass 186 visa.

9. The Tribunal requested that any comments or response that the applicant wished to make in relation to this information be provided to it by 27 September 2018. On 17 September 2018 the applicant’s agent requested an extension of time in which to comply with the invitation and one was granted until 17 October 2018.

10. On 15 October 2018 the applicant’s agent wrote to the Tribunal advising that the applicant had lodged a judicial review of the Tribunal’s decision in relation to the nominator and requesting an effective stay in the decision in this proceeding until such time as the judicial review was determined. On 31 October 2018 the Tribunal responded in writing advising the agent that the Tribunal will proceed to a determination of this proceeding on the basis that it does not speculate as to the outcome of judicial review.

11. On 31 October 2018, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing on 18 December 2018.The applicant declined the opportunity to attend a hearing via his agent and consented to a decision being made on the papers without the need for a hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the primary applicant has complied with the requisite criteria to succeed in their application for a Subclass 186 visa.

14. 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 of the Regulations.

    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. As noted above, the Tribunal finds that at the time the primary applicant made his visa application on 27 June 2017, he was the subject of a nomination application made by SHUNKANG INVESTMENTS AUST PTY LTD which was pending with the Department. The Department refused to approve that nomination on 30 October 2017. On 3 September 2018 the Tribunal affirmed the Department decision. Accordingly, the Tribunal finds that the primary applicant is not the subject of an approved nomination by SHUNKANG INVESTMENTS AUST PTY LTD at the time of its decision as required by cl.186.233(3).

18. As the primary applicant must satisfy all the subparagraphs  of cl.186.233 in order to meet the requisite criterion, the Tribunal must find that cl.186.233 is not met.

19. The primary 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 dependent applicant Ms Xiaomin Zhou made a combined application with the primary applicant but has not made any claim towards satisfying this class of visa other than as part of the family unit of the primary applicant. As the primary applicant does not meet cl.186.233, the dependant applicant is unable to meet criteria 186.311(a). Therefore Ms Zhou has failed to meet the requisite criteria to achieve an Employer Nomination Scheme(subclass 186) visa and her application is refused.

21. Both Yuzhou He and Zhanhao He are dependent applicants of the primary applicant and since the primary applicant did not satisfy the criteria in cl.186.233 the dependent applicants are unable to meet the criteria of cl 186.311(a) similarly. Therefore the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa are not satisfied and their applications are similarly refused.

22. Therefore, cl.186.233 is not met.

    Other criteria

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

    Danielle Galvin
    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.