Jiang (Migration)

[2020] AATA 1104

Jiang (Migration) [2020] AATA 1104 (26 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Yawen Jiang
Mr Meng Meng
Ms Yuetong Meng

CASE NUMBER:  1728908

HOME AFFAIRS REFERENCE(S):          BCC2016/2262961

MEMBER:Terrence Baxter

DATE: 26 February 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the first named and third named applicants Employer Nomination (Permanent) (Class EN) visas. The Tribunal does not have jurisdiction in the matter of the second named applicant.

Statement made on 26 February 2020 at 8:55am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Sales and Marketing Manager – subject of an approved nomination – no response to s 359A invitation – not entitled to appear before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 7 November 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 5 July 2016. 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 Temporary Residence Transition stream to work in the nominated position of Sales and Marketing Manager.

5. The delegate refused to grant the visas on 7 November 2017 because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by Arjnew Pty Ltd was refused on 28 August 2017 and that accordingly the applicant did not satisfy cl.186.223(2) and did not meet cl.186.223 as a whole as required.

6. The delegate also found that the second named and third named applicants could not be granted Subclass 186 visas, as they did not meet the secondary visa criterion (cl.186.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

7. The applicant appeared before the Tribunal on 14 January 2020 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. The applicants were represented in relation to the review by their registered migration agent. The representative did not attend the hearing on 14 January 2020.

9. For the following reasons, the Tribunal has concluded that the decision under review in respect of the first named and third named applicants should be affirmed. Also, for the following reasons, the Tribunal has found that it has no jurisdiction to review the decision in respect of the second named applicant.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether there is an approved nomination in respect of the applicant.

    Nomination of a position

11. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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.

12. In addition, this criterion also requires that:

    ·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.

13. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the applicant’s nominator, Arjnew Pty Ltd, made an application to the Department to have the position of Sales and Marketing Manager approved, with the applicant as nominee, on 5 July 2016. The nomination application was refused on 28 August 2017 and Arjnew Pty Ltd sought review of that decision with the Tribunal on18 September 2017.

14. On 30 January 2020, the Tribunal affirmed the decision not to grant the nomination application.

15. On 4 February 2020, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them 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 particulars of the information were as follows:

    On 30 January 2020, the Tribunal affirmed the decision not to grant an Employer
    Nomination lodged by Arjnew Pty Ltd.

    This information is relevant to the review because it was the nomination referred to in
    the visa application by Mrs Yawen Jiang for the purposes of satisfying cl.186.223(1).

    If we rely on this information in making our decision, we may find that Mrs Yawen
    Jiang does not meet cl.186.223(2), which requires the nomination be approved, and
    affirm the decision under review in respect of her application.

    We may subsequently find that Mr Meng Meng and Ms Yuetong Meng do not meet the secondary visa criterion cl.186.311, which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of a visa and who holds a Subclass 186 visa, and affirm the decision under review in respect of their applications. You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 18 February 2020.

16. The Tribunal is satisfied that this invitation was properly dispatched to the applicants’ email address. The applicants failed to comment on or respond to the invitation within the prescribed time for commenting on or responding to the invitation. No comment on or response to that invitation has ever been received by the Tribunal.

17. Where a review applicant is invited to comment on or respond to information in accordance with s.359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to s.359C(2) of the Act.

18. The Tribunal has considered whether it should take further action to obtain the applicants’ views on the information referred to in paragraph 15 above. Although the applicants have not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicants have been aware since 7 November 2017 of the reasons for the visa application being refused, and also that the implications of not providing the information requested in the invitation from the Tribunal of 4 February 2020 were set out in that correspondence. The Tribunal has also taken into account that the applicant was advised at the hearing on 14 January 2020 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by Arjnew Pty Ltd.

19. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicants’ views on the information referred to in the invitation from the Tribunal of 4 February 2020 or to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cl.186.223 and 186.311 of Schedule 2 to the Regulations.

20. The Tribunal notes that the application for nomination for the position of Sales and Marketing Manager has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application.

21. Therefore, cl.186.223 is not met.

22. 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.

23. In relation to the second named applicant, s.347(3A) of the Migration Act 1958 (the Act) specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(7A), an application for review may only be made by a non-citizen who was physically present in the migration zone at the time when the decision was made and is physically present in the migration zone when the application for review is made. Section 338(7A) provides that a decision to refuse to grant a non‑citizen a permanent visa is a Part 5 – reviewable decision if the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone and the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone. “Migration zone” is defined in s.5(1) of the Act and, generally speaking, means the Australian States and Territories.

24. The movement records of the Department show that the second named applicant was not in the migration zone between 21 June 2016 and 17 July 2016, and between 5 October 2017 and 21 November 2017. Accordingly, he was not in the migration zone when the visa application was made (5 July 2016). A Subclass 186 visa is a visa that could be granted when a non-citizen is either inside or outside the migration zone. The second named applicant was also outside the migration zone when the delegate’s decision was made (7 November 2017) and when the application for review was lodged (20 November 2017).

25. On 7 January 2020, the Tribunal wrote to the second named applicant at his email address in the following terms:

    It appears that your application may not be a valid application as the records of the Department of Home Affairs indicate that you were offshore at the date of the decision (7 November 2017) and at the date of the application for review (20 November 2017). Section 347(3A) of the Migration Act 1958 requires that an applicant must be onshore both at the time of the delegate’s decision and the time of the application for review. It appears that you were not in Australia on those dates and I am therefore of the view that your application is not a valid application. However, this is a matter which must be determined by a Member.

    If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 14 January 2020 or alternately, you may do so orally at the hearing. Any comments you make, will be referred to the Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

26. The second named applicant did not reply to that correspondence. At the hearing, the Tribunal’s possible lack of jurisdiction in respect of the second named applicant was put to the applicant and she was asked whether she had any response. She answered that she did not.

27. The Tribunal finds that the application for review by the second named applicant is not an application properly made under s.347 and the Tribunal does not have jurisdiction in the matter of that application.

28. In relation to the third named applicant, 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. 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 third named applicant does not satisfy the requirements of cl.186.311. The Tribunal finds accordingly.

    DECISION

29. The Tribunal affirms the decision not to grant the first named and third named applicants Employer Nomination (Permanent) (Class EN) visas.

30. The Tribunal does not have jurisdiction in the matter of the second named applicant.

    Terrence Baxter
    Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)    The nomination has not subsequently been withdrawn.

    (3A)   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.

    (4)    The position is still available to the applicant.

    (5)    The application for the visa is made no more than 6 months after the Minister approved the nomination.