Kuang (Migration)

[2020] AATA 1703

Kuang (Migration) [2020] AATA 1703 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zheng Kuang

CASE NUMBER:  1925649

HOME AFFAIRS REFERENCE(S):          BCC2018/3933870

MEMBER:Alan McMurran

DATE:28 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 28 May 2020 at 4:23pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) –­ Temporary Residence Transition stream – Graphic Designer – subject of ­an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 12 September 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 22 August 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, a 35-year-old citizen of the Peoples’ Republic of China, applied for the visa on 26 June 2018. 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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Graphic Designer 232411.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the applicant was not the subject of a nomination approved by the Minister.

6. The Tribunal sent a letter to the applicant on 12 May 2020 inviting the applicant to respond to information that the applicant was not the subject of an approved nomination, and which would be the reason or part of the reason for affirming the Department’s decision under review. The applicant was requested to respond by 26 May 2020, failing which the applicant would lose any right to a hearing to present arguments and/or make submissions. The applicant did not respond within time, or at all. No request was made for an extension of time and the Tribunal is not aware of any information that the nomination application is subject to any further review, or as to the circumstances of the applicant.

7. The applicant has lost his right to appear in the Tribunal[1] and the Tribunal has elected to decide the review without taking any further action to obtain the applicant’s views, and to decide the matter on the information presently available.

   [1] section 359C (2) and section 360 (3) of the Act

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 Minister has approved the nomination.

10. The Tribunal has available to it the Tribunal’s case file, together with the Department’s file, BCC2018/3933870. That information includes the details of the refusal of the nomination application made by Foto Direct Pty Ltd, and letter sent to the visa applicant on 23 July 2019 by the Department inviting the applicant to comment on the refused nomination. The applicant did not respond to the Department’s letter.

    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. If any one criterion is not met, then it is not necessary on review to consider any of the remaining criteria. As at the time of this decision, the Tribunal has received no further information or response from the applicant at all.

14. On the information available, the Tribunal finds that the nomination application for the occupation by the nominator was refused by the Department on 23 July 2019. The Tribunal further finds that the Department’s decision refusing the nomination is not the subject of a review.

15. The Tribunal has had regard to its internal checking which discloses no response to the Tribunal’s letter, which was dispatched to the applicant to the address recorded by the Tribunal. The Tribunal is not aware of any application to extend the time in which to review the visa decision, or any request by the applicant to defer making this decision.

16. Having considered the available information, the Tribunal finds that the Minister has not approved the nomination.

17. Therefore, the applicant does not meet cl.186.223.

18. 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.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Alan McMurran
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.