Liang (Migration)

[2018] AATA 5547

Liang (Migration) [2018] AATA 5547 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jianhua Liang
Mrs Lizhu Ren
Mr Zekun Liang
Mr Zehua Liang

CASE NUMBER:  1616081

HOME AFFAIRS REFERENCE(S):           BCC2015/3318778

MEMBER:Jennifer Cripps Watts

DATE:10 October 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 10 October 2018 at 9:13am

CATCHWORDS
MIGRATION – Nomination (Permanent) (Class EN) visas – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Café or Restaurant Manager – nomination refused – doctor’s certificate – postponement request not granted – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, 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 Immigration and Border Protection on 20 September 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 11 November 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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visas because the delegate of the Minister was not satisfied that the applicant was the subject of an approved nomination.

6. On 22 August 2018, the applicants were invited to the scheduled Tribunal hearing, in writing.  The hearing was scheduled on 24 September 2018 at 11:30am.  On the morning of the hearing, the Tribunal received an email from [email protected], with a sign-off from the applicant, Jianhua Liang.  She advised in the email, “I can not attend tomorrow interview due to my unfitness.”

7. The doctor’s letter attached to the email related to the applicant, Ms Liang. The letter is signed by Dr David F Li, of the Hurstville West Street Surgery and was issued on Saturday, 22 September 2018. It states the following:

   “This is to certify that Mr Jianhua Liang of … Allawah … is receiving medical

   treatment for the period of Saturday, 22 September 2018 to Monday, 24 September

   2018, inclusive, he will be unfit to continue his usual work/school/sport activities.”

8. The Tribunal considered the request and the letter from Dr Li and was not satisfied that the applicant was unable to attend the hearing.  The doctor’s qualifications are not in dispute.  However, there is no useful information in the letter, for example, explaining specifically why the applicant could not attend her Tribunal hearing.  The applicant did not request that she attend by phone.  After receiving the email with attached doctor’s letter at around 9:00am on the morning of the hearing, the member instructed a case officer to contact the applicant (which they did at 9.15am on the morning of the hearing), and advise that the postponement request had not been granted.  The call was unanswered.  There are case notes on the Tribunal file confirming these matters.

9. In the hearing invitation sent to the applicant, it is clearly stated that they may request an adjournment (or postponement) of their hearing, but that “If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.  If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us…”  The Tribunal did not confirm with the applicant that an adjournment or postponement had been granted.  The applicant did not contact the Tribunal to find out if the hearing had been postponed, between the time she sent the request and the time of the scheduled hearing.  The hearing went ahead and the applicant did not attend her scheduled hearing.

10. Since lodging the review application with the Tribunal on 30 September 2016, the applicant has not informed the Tribunal of any change to her circumstances, for example, a different address or contact details, and the Tribunal has continued to communicate with the applicant in the manner indicated in her application.  The review application included that she lives in Allawah (the same address in the doctor’s letter received the day before the hearing, which the Tribunal takes to mean she still lives there) and that the email address is the same one that the postponement request was received from on 24 September 2018.  The Tribunal considers it reasonable to think that the applicant’s phone number as advised in the review application remains the same.  It is this number that SMS hearing reminders were sent to on 17 and 21 September 2018 (with no error or undelivered message received back) and it is also the same number that the Tribunal used to call the applicant on the morning of her hearing. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant is the subject of an approved nomination.

13. The nominating employer is Eastern Treasure Pty Ltd.  The Tribunal affirmed the decision to refuse their nomination for the applicant in the position or Café or Restaurant Manager on 24 September 2018.  They were notified of the decision on the same day.  The applicant in this matter was subsequently notified, by way of a s.359A letter on 25 September 2018, that because the related nomination decision had been affirmed it did not appear that the applicant met the criteria for the grant for the visa, and this would be a reason for affirming the decision to refuse her visa.  The applicant was invited to comment on or respond to the information regarding the nomination in writing by 9 October 2018.  She was informed that she could ask for an extension of time, no later than 9 October 2018, to comment or respond.  

14. The applicant did not request an extension of time, nor did she respond to the s.359A letter by 9 October. 

15. The Tribunal is satisfied that it has taken all reasonable steps to provide the applicant with the opportunity to comment on or respond to the adverse information and finds that she is not the subject of an approved nomination.

    Nomination of a position

16. 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.

17. For reasons explained above, the Tribunal is satisfied that the applicant is not the subject of an approved nomination.

18. Therefore, cl.186.233 is not met.

19. The dependant applicants must satisfy cl.186.311, which states, relevantly, that the (dependant) 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.

20. The dependant applicants made a combined application with the primary applicant.  However, as the (primary) applicant does not hold a Subclass 186 visa, the dependant applicants in this review do not meet the criteria for the grant of the visa because there is no evidence before the Tribunal that they are members of the family unit of a person who does hold a 186 visa.

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

    Jennifer Cripps Watts
    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

    (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.