JIN (Migration)

[2020] AATA 4467

JIN (Migration) [2020] AATA 4467 (19 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Guofeng JIN
Mrs Zhenji LIN

CASE NUMBER:  1801498

HOME AFFAIRS REFERENCE(S):          BCC2017/45699

MEMBER:De-Anne Kelly

DATE:19 October 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 19 October 2020 at 4:13pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Retail Buyer – subject of an approved nomination – employer nomination review application withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 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 Home Affairs on 15 January 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 5 January 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 Temporary Residence Transition stream, to work in the nominated position of Retail Buyer ANZSCO 639211.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the delegate of the Minister refused the employer nomination by Scottwell International Pty Ltd being the application referred to in cl.186.223(1)

6. The applicants appeared before the Tribunal on 29 September 2020 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, Mr Chang Liu MARN 1281423 of NSW 2199. The agent did not attend the hearing.

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.186.223(2)

   (2)       The Minister has approved the nomination.

   Nomination of a position

10. 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.

11. 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.

    Section 359AA of the Act

12. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.

13. Section 359AA provides as follows:

    (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)   if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii)orally invite the applicant to comment on or respond to the information; and

    (iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

14. In the hearing under s 359AA of the Act the Tribunal advised the applicant Mr Guofeng Jin that the employer nomination review application by Scottwell International Pty Ltd was accepted by the Tribunal as withdrawn on 1 September 2020. This is the employer nomination that was lodged under cl.186.223(1).  The Tribunal explained to the applicant that since the employer nomination review application had been withdrawn by the employer there was no approved employer nomination to satisfy cl.186.223(2).  The Tribunal advised the applicant that he could respond in a number of ways and he chose to respond in the hearing.

15. Mr Jin explained that he had applied for the case about 4 years ago and the reason he applied for an appeal was because he did not understand the decision made at that time. He believed he had fulfilled all the criteria, but the company is no longer in operation. It is in liquidation and the liquidators have withdrawn the review application. He applied for the review two and half years ago and the company was liquidated in that time. The Tribunal advised that he could have a further 14 days to respond to the Tribunals concern. He did not request an adjournment or an extension of time to respond.

16. The Tribunal, in response to the invitation, has received no communication or response from the applicant or their appointed migration agent and believes it is reasonable to proceed to a decision.

17. Since the employer nomination review application has been withdrawn there is no possibility of the employer nomination being approved and therefore the applicant cannot satisfy cl.186.223(2).

18. Therefore, cl.186.223 is not met.

19. 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.

20. Mrs Zhenji LIN was the secondary applicant on the application for Employer Nomination (Permanent) (Class EN) visas (Subclass 186) and sought to satisfy cl.186.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.186.311. This clause provides as below. The secondary applicant lodged an application with the Tribunal to review the decision to refuse the Visa application.

    186.311
    The applicant:
    (a) 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; and

    (b) made a combined application with the primary applicant.

21. The secondary applicant made a combined application with the primary applicant and applied as the partner and therefore a member of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, an Employer Nomination (Permanent) (Class EN) (Subclass 186). Therefore, the primary applicant is not a person who holds a subclass 186 visa. The secondary applicant is a member of the family unit of the primary applicant, who does not hold a subclass 186 visa. The secondary applicant therefore does not satisfy cl.186.311.

22. The secondary applicant does not meet cl.186.311 and the Tribunal affirms the decision not to grant Mrs Zhenji LIN a subclass 186 visa.

    DECISION

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

    De-Anne Kelly
    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.