Kuang (Migration)

[2018] AATA 2327

Kuang (Migration) [2018] AATA 2327 (25 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Quan Kuang
Mr Martin Beard

CASE NUMBER:  1609210

DIBP REFERENCE(S):  BCC2015/2214439

MEMBER:Hugh Sanderson

DATE:25 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 25 May 2018 at 10:45am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

Practice and Procedure – Request for adjournment – Nomination application refusal currently before the Federal Circuit Court – Success of application speculative – Matter likely to take a significant amount of time to resolve – Delay would be unreasonable – Request for adjournment refused

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cl 186.223(3)

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 20 June 2016 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 3 August 2015. 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 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 importer or exporter. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination application of the applicant sponsor, Tai-Ao Aluminium (Australia) Pty Ltd, had been refused.

   Background

6. The applicant applied the visa on the basis of her employment with the sponsor as an importer/exporter. The second named applicant has applied on the basis that he is a member of the family unit of the person who meets the primary criteria.

7. The nomination application of the applicant sponsor was refused by the Department on 11 April 2016. As the nomination application was refused, the delegate found that the applicant was not the subject of an approved nomination and therefore did not meet the criteria in cl.186.223(2) and refused the application.

8. The sponsor applied for a review of the decision to refuse the nomination application. After a hearing before the Tribunal, the Tribunal issued a decision on 23 April 2018 affirming the decision to refuse the nomination application. On 24 April 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act noting that the Department’s decision to refuse the nomination application of the sponsor had been affirmed by the Tribunal and, as such, the applicant was not subject to an approved nomination.

9. The applicant responded on 2 May 2018 with her agent claiming that the sponsor was appealing against the decision of the Tribunal to refuse the nomination application. It was requested that the Tribunal not make a decision until the court had decided the sponsor’s application.

10. The applicants appeared before the Tribunal on 24 May 2018 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent who did not attend the hearing.

11. The applicant provided a copy of a receipt from the Federal Circuit Court dated 22 May 2013 noting an appeal had been filed by the the sponsor’s agent.

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 applicant is the subject of an approved nomination.

    Nomination of a position

14. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

15. The nomination application of the applicant’s sponsor, Tai-Ao Aluminium (Australia) Pty Ltd, was refused by the Department and that decision has now been affirmed by the Tribunal on review. Although the Tribunal’s decision may be subject to a pending appeal before the Federal Circuit Court, at the time of this decision the applicant is not the subject of approved nomination.

16. The Tribunal has considered the application of the applicant to delay any decision on the matter pending the outcome of the appeal by the sponsor. The Tribunal does not accept that it is appropriate to await the outcome of any appeal lodged by the sponsor in respect of the decision to refuse the nomination application. The outcome of that appeal is speculative and, due to the workload of the Federal Circuit Court, is likely to lead to unreasonable delay in making a decision in this application.

17. At the time of this decision, the applicant is not the subject of an approved nomination. Therefore, cl.186.223(2) is not met.

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.

19. The application of the second named applicant is based on being a member of the family unit of a person who meets the primary criteria. As the first named applicant does not meet the primary criteria, the second named applicant does not meet the criteria for the grant of the visa. Accordingly, the Department’s decision to refuse the application of the second named applicant must also be affirmed.

    DECISION

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

    Hugh Sanderson
    Member