Leung (Migration)

[2019] AATA 6324

Leung (Migration) [2019] AATA 6324 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ho Kwan Leung

CASE NUMBER:  1922514

HOME AFFAIRS REFERENCE(S):          BCC2018/947109

MEMBER:Alan McMurran

DATE:19 December 2019

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 19 December 2019 at 1:01pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Cook – specified work experience and skill level – subject of an approved nomination – nomination refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.233, 186.234

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 14 August 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 25 July 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 applied for the visa on 28 February 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 Direct Entry stream, to work in the nominated position of cook (ANZSCO 35141. The related nomination file by New Timford Pty Ltd (the sponsor) was determined by delegate from the Department on 19 August 2019, refusing the nomination.[1]

   [1] BCC 2018/937166

5. The delegate refused to grant the visa because the applicant did not meet cl.186.234, on the grounds cl.186.234 (2)(b) and cl. 186.234(3) of Schedule 2 to the Regulations were not met, because the delegate was not satisfied the applicant was employed in the occupation for at least 3 years on a full-time basis and at the required skill level for the occupation, and further that the applicant was not in a class of persons as specified by the Minister in a relevant Instrument, and does not meet subclause 186.234 (3).

6. The applicant appeared before the Tribunal on 17 December 2019 in a multi-application hearing list to give evidence and present arguments. The applicant was not represented in relation to the review, having terminated the services of the representative, Mr Philip Knell, prior to the hearing.

7. The applicant did not require the assistance of an interpreter and confirmed with the Tribunal at the hearing that he understood the process. The Tribunal was also satisfied that no issues arose concerning interpretation and none were raised by the visa applicant.

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

   Background

9. The applicant is a 27-year-old citizen of Hong Kong Special Administrative Region of the People’s Republic of China. The applicant has a Bachelor degree from Hong Kong Baptist University, and holds an AQF certificate III and IV in Commercial Cookery obtained in Australia in March 2017.

10. The applicant arrived in Australia on 20 January 2015 on a working holiday visa. Following completion of his studies in 2017, and gaining employment with the sponsor, the applicant sought this permanent employer-sponsored visa application lodged online on 28 February 2018.

11. The applicant’s only work experience has been with the sponsor, which conducted a café restaurant business at Camden in New South Wales, where the applicant was employed. That café has since been closed, although the sponsor operates other hospitality venues where the applicant remains employed.

12. At the hearing, the Tribunal explained that although the visa application had been refused by the Department based on the applicant’s lack of experience in the role, the principal issue for discussion at the hearing was the absence of an approved nomination, as the sponsor’s nomination application had also been refused, albeit on different grounds.

13. The Tribunal explained it had available the nomination decision as well as the decision for the visa applicant, together with the related files from the Department and the Tribunal’s case files. The Tribunal explained that without an approved nomination, it was essentially futile to re-consider the visa application, and the Department’s grounds for refusal, as the application cannot succeed without an approved nomination. The Tribunal explained the issue to the applicant who said he now understood and was aware that the nomination decision had not been challenged and was not under review.

14. On 28 November 2019, the Tribunal had sent a letter to the applicant under section 359A of the Act, with particulars that the nomination lodged by the sponsor was refused and that on the available information before the Tribunal, the position identified in the visa application had not been approved and there was no application by the sponsor to review that refusal.

15. The applicant responded on 10 December 2019, requesting an adjournment of the hearing as he had terminated his representative and was seeking time “to make preparations for the hearing, and my employer is considering to take part in hearing with me but this period of busy time near Christmas is not convenient for the arrangement.”

16. The Tribunal considered the request but declined to grant the extension of time as no other supporting information or responses were made to the particulars set out in the Tribunal’s natural justice letter and no application for review of the nomination decision, or an extension of time to do so, has been made. The visa applicant appeared for the hearing and on conclusion, indicated there was nothing further he could add or say in response to the fact there was no approved nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

18. If those requirements are met, the Tribunal would be obliged to also consider whether the applicant meets cl.186.234(2)(b) of Schedule 2 to the Regulations.

19. If the applicant fails to meet any one of the relevant criteria for the grant of the visa, then the Tribunal is not obliged to consider on review any remaining criteria, including the criteria found by the delegate which were not met by the visa applicant.

    Nomination of a position

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

21. 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 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.

22. The Tribunal finds it is satisfied that on 19 August 2019, the Department determined not to approve an application by the sponsor for the nominated occupation. That decision is not the subject of an application for review by the Tribunal or under further consideration and has been finalised.

23. The Tribunal finds that the applicant is not the subject of a nomination which the Minister has approved and on the evidence provided for the hearing, is satisfied that there is no other pending nomination, or review of an application by a nominator which has been refused, or any extension of time request sought in that regard and under consideration.

24. Therefore, cl.186.233 is not met, and the Tribunal is not required to consider any other remaining criteria, including whether the applicant now meets cl.186.234.

25. 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

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

    Alan McMurran
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.