Li (Migration)

[2020] AATA 4604

Li (Migration) [2020] AATA 4604 (8 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Qian Li
Mr Guangquan Che

CASE NUMBER:  1814696

HOME AFFAIRS REFERENCE(S):          BCC2017/1477704

MEMBER:Stavros Georgiadis

DATE:8 October 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 8 October 2020 at 1:24pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager (ANZSCO 141111) – nomination review affirmed – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.13A, 1.13B, 5.19; Schedule 2, cl 187.233

CASES

VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280

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 4 May 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 24 April 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 the Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111). 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 primary applicant did not meet cl.186.223 of Schedule 2 to the Regulations as the application for a nominated occupation in relation to the applicant had not been approved.

6. The applicant appeared before the Tribunal on 8 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominating employer’s Director, Ms Huh in the related AAT casefile 1809050 refusing the nomination for the occupation. The related matters were heard together in a combined hearing.

7. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the combined hearing by video conference, having regard to the nature of the matters and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.   

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

9. The applicants were represented in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicants meet the criteria for the grant of Subclass 186 visas which are set out in Schedule 2 to the Migration Regulations 1994.

    Nomination of a position

12. 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.

13. 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.

14. From the visa application on the Department file the Tribunal notes the required declaration has been made in relation to the position of Café or Restaurant Manager nominated by the employer sponsor. The Tribunal is satisfied on the documentary and oral evidence before it, that the position to which the application relates is the position nominated by SK Food Pty Ltd in an application for approval that seeks to meet the requirements of sub-paragraph 5.19(3), and is in relation to which the applicant has been identified in the nomination as the relevant Subclass 457 visa holder for the position under cl.186.223(1). 

15. On 8 October 2020 the Tribunal made a decision to affirm the decision under review in respect of the nomination under r.5.19 in the related AAT case-file number 1809050. At the hearing the Tribunal put to the applicant, in accordance with the procedure under s.359AA of the Act, that without an approved nomination she would not meet necessary criteria to satisfy cl.186.223 (specifically cl.187.223(2)) for the grant of the visa and that the application would, on that basis, be unsuccessful in respect of all applicants. The Tribunal invited the applicant to comment on, or respond to, the information that where a decision had been made by the Tribunal to refuse the nomination, this would be the reason or part of the reason, for affirming the decision under review.  The Tribunal also advised the applicant that she could seek additional time to comment on, or respond to, the information and that the Tribunal would consider adjourning the review if it considered the applicant reasonably needed additional time to comment on, or respond to, the information. 

16. The applicant did not require additional time to comment or respond. The applicant conveyed to the Tribunal that the applicants understand and accept that in circumstances where there is no nomination approved, it would not be open for the visa applications to be successful as approval of the nomination is one of the requirements for the grant of the 186 visas.

17. The Tribunal has not returned the matter for any further evidence or submissions as in these circumstances, and in view of authority in the case of VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280 (paragraphs 51-58) it would be ‘futile’ as ‘no useful result could ensue’ because the Subclass 187 visas cannot be granted in the absence of an approved nomination in respect of the applicant. The Tribunal is satisfied that there is no practical injustice in not returning the matter to the Tribunal following the decision to refuse the nomination and accepts the oral submissions made on behalf of the applicant at the hearing that concur with this.

18. Having considered the available evidence before it discussed, the Tribunal is satisfied that the position of Café or Restaurant Manager (ANZSCO 141111) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.186.223(2). The Tribunal finds that the nomination of the position to which the application relates is not approved. 

19. As cl.186.223(2) is not satisfied, cl.186.223 is therefore, not met.

20. 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 in respect of all applicants as members of the same family unit (spouses) as the primary applicant.

    DECISION

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

    Stavros Georgiadis
    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.