Jia (Migration)

[2021] AATA 3142

Jia (Migration) [2021] AATA 3142 (21 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Peilin Jia
Ms Xiuping Chen
Mr Yunzhou Jia

CASE NUMBER:  1827475

HOME AFFAIRS REFERENCE(S):          BCC2017/2329312

MEMBER:Karen McNamara

DATE:21 July 2021

PLACE OF DECISION:  Sydney

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

Statement made on 21 July 2021 at 9:10am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – Chef – nomination refused –not the subject of an approved nomination – members of the family unit of the first named applicant –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.233, 186.311

CASES
Hasran v MIAC [2010] FCAFC 40

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 on 4 September 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 30 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 (Cth) (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 Mr Peilin Jia (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Chef (ANZSCO 351311).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations which required Mr Peilin Jia to be the subject of an approved nomination. The delegate found that the nomination lodged by Top Taste Group Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs on 23 July 2018.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 186.233(3) was not met and therefore the applicant did not meet cl.186.233 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant, Ms Xiuping Chen and third named applicant Mr Yunzhou Jia could not be granted a Subclass 186 visa, as they did not meet the secondary visa criterion (cl.186.311 ) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

8. The applicants applied to the Tribunal on 19 September 2018 for review of the delegate’s decision and provided a copy of the delegate’s decision.

9. On 19 July 2021, Mr Peilin Jia appeared on behalf of the applicants before the Tribunal via telephone, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

10. 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 applicants. 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 applicants were given a fair opportunity to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl.186.233.

    Nomination of a position

13. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

14. 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 reg 1.13A and reg 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.

15. On the 15 April 2021, the Tribunal affirmed the decision refusing the approval of the nomination made by Top Taste Group Pty Ltd (the nominator) in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.186.233(3) and as such cl.186.233 is not met.

16. On 2 July 2021, the Tribunal invited the applicants under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 19 July 2021 at 10:30am.

17. Subsequently on 2 July 2021, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their 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 decision not to approve the nomination made by Top Taste Group Pty Ltd, which the Tribunal explained was relevant to the applicant meeting cl.186.233(3) which requires the nomination to be approved.

18. The Tribunal’s letter of 2 July 2021 additionally stated the following;

    ‘ The nomination relied on to satisfy cl.186.233 must be the one that was made at the

    time of the visa application – it is not possible to rely on another nomination.

    If the Tribunal relies on this information, it may find that the nomination in relation to
    you has not been approved and consequently the decision under review would be
    affirmed. You must have a related nomination to be able to be granted the visa.

    You are invited to give comments on or respond to the above information in writing.
    Your comments or response should be received by 16 July 2021. If the comments or
    response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 16 July 2021, you may
    ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 16 July 2021 and you must state
    the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    An invitation to attend a scheduled hearing was sent to you on 2 July 2021.
    Please note, however, that if you do not respond to this letter within the date
    specified or within any extended timeframe, you will lose your right to attend the
    scheduled hearing and it will be cancelled. The Tribunal will proceed to make a
    decision on the review without taking any further action to obtain your views on
    the information.’

19. The invitation was sent to the applicant’s authorised representative via the last email address provided in connection with the review. As stated above, the invitation advised that, if the comments or response were not provided in writing by 16 July 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had to attend the scheduled hearing.

20. On 2 July 2021, the Tribunal received an email from the applicant’s authorised representative with an attached signed response to the hearing invitation. The email stated as follows;

    ‘Thank you very much for your email and the information provided. I really appreciate your great efforts and your great support. I spoke to the visa applicants just now and they confirmed they would attend the hearing through telephone at your scheduled time. Please find attached the completed form for more detailed information.’

21. The Tribunal notes that the applicants did not address the issues raised in the Tribunal’s invitation to comment dated 2 July 2021.

22. The review applicants have not provided the comments within the prescribed period and no extension was sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

23. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act, to allow the applicant additional time in which to provide evidence to support the review application. In this regard the Tribunal considered whether, in the circumstances of this case, evidence that the applicant meets the requirements of cl 186.233(3) of the Regulations is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

24. The Tribunal noted that the applicants accepted the Tribunal’s invitation to appear before it to give evidence and present arguments at a hearing on 19 July at 10.30 am. The Tribunal determined that whilst the applicants were not entitled to a hearing, in this instance the Tribunal would afford the applicants the opportunity to appear before it to give evidence and present arguments.

25. On 16 July 2021 the applicant contacted the Tribunal via telephone and advised that his representative had not provided him with any documents, but he was aware of the hearing scheduled for 19 July 2021. The Tribunal advised him that all Tribunal correspondence had been sent to his authorised representative and that he should contact the representative to obtain copies of said documents. The applicant advised the Tribunal that the representative might not provide them to him and that he intended to withdraw his representative from the case. The Tribunal confirmed the applicant’s contact details and forwarded the applicant a courtesy copy of the hearing invitation and a MR6 change of contact detail form.

26. The change of contact details were received by the Tribunal on 19 July 2021.  

27. At the hearing of 19 July 2021, the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in his case, his visa application is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

28. The Tribunal further told the applicant, that in relation to the secondary applicants Ms Xiuping Chen and Mr Yunzhou Jia, cl.186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (in this case Mr Peilin Jia ) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

29. The Tribunal noted that there was no evidence before it to suggest that Mr Peilin Jia’s visa application is subject to an approved nomination and invited the applicant to comment.

30. Mr Jia declined the Tribunal’s invitation to comment on this matter. Following the Tribunal’s second invitation to comment, Mr Jia told the Tribunal that he did not receive a letter from his agent and only became aware of the hearing after receiving text messages from the Tribunal and that his boss also told him about the hearing.

31. The Tribunal told the applicant that the Tribunal forwarded correspondence to the contact details provided to it, in connection with the review application.

32. 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.186.233(3) of Schedule 2 to the Regulations.

33. As the first named applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.233 of Schedule 2 to the Regulations is not met.

34. There is no evidence before the Tribunal to indicate that the second or third named applicants meet the primary requirements for grant of the visa.

35. In relation to the second named applicant Ms Xiuping Chen and third named applicant Mr Yunzhou Jia, the Tribunal notes that cl.186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

36. As the applicant has not met the requirements for the grant of a Subclass 186 visa, and is not the holder of a Subclass 186 visa, it follows that the secondary applicants Ms Xiuping Chen and Mr Yunzhou Jia as members of Mr Peilin Jia’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named and third named applicants do not satisfy cl.186.311 of Schedule 2 to the Regulations.

37. 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

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

    Karen McNamara
    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.