LIANG (Migration)

[2018] AATA 1156

LIANG (Migration) [2018] AATA 1156 (20 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Congli LIANG
Mr Xuan ZHENG
Miss Cynthia Zhen ZHENG
Mr Cheng Bruce ZHENG

CASE NUMBER:  1719046

DIBP REFERENCE(S):  BCC2016/2251640

MEMBER:R. Skaros

DATE:20 March 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 20 March 2018 at 12:14pm

CATCHWORD
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Nominator’s status of liquidation – Possibility of overturning liquidation – Draft deed of forbearance – Efforts to stop liquidation

LEGISLATION
Migration Act 1958, s 65,
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19, Schedule 2 cl 186.223

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 on 10 August 2017 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 to the Department of Immigration for the visas on 4 July 2016. 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 Graphic Designer. 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 delegate was not satisfied that the position was still available to the applicant. The Department relied on information from the Australian Securities and Investment Commission (ASIC) indicating that the applicant went into administration and on information received from the appointed administrators on 10 August 2017 advising the Department that the nominator, Media Plus Plus Group (the Company) had gone into liquidation.

6. The applicant provided a copy of the delegate’s decision record to the Tribunal. The applicants were represented in relation to the review by their registered migration agent.

7. On 22 September 2017 the Tribunal invited the applicants to appear before it on 14 November 2017 to give evidence and present arguments. The representative contacted the Tribunal to request for the hearing to be postponed as the applicants were not expecting to have their matter dealt with so quickly and that the nominating Company, who is in liquidation, was taking steps to nominate the applicant again by the end of the year. The Tribunal also received a written statement from the applicant by email on 26 September 2017 detailing her and her family’s personal circumstances and requesting the Tribunal to given her time until the Company returns to normal operations. Letters of support from the applicants’ close family friends were provided. Also provided was a letter from the Hon Ernest Wong MLC detailing the personal circumstances of the applicant and her family and requesting an extension of 6 months to give the applicant’s employer the opportunity to recover from their financial difficulties.

8. The Tribunal considered the request to postpone the hearing but after having regard to all of the information before it decided not to postpone the hearing. On 16 October 2017 the Tribunal wrote to the applicant advising her that the hearing would not be postponed and that the reasons for this decision would be discussed with her at the hearing.

9. The applicant confirmed that she would be attending the hearing and indicated in the response to hearing that her employer, Mr Bingwen Wang, would also attend the hearing to give evidence.

10. Prior to the hearing the Tribunal received a number of documents, including a letter from the Company’s director, Mr Bingwen Wang, in which he details his efforts to pay off the Company’s debts so as to pull the Company out of liquidation, including an intention to sell his home and use the proceeds to pay creditors. He stated that he has decided to arrange a Deed of Forbearance and has placed a caveat on his property. In support of this, he provided a draft, unsigned and incomplete Deed of Forbearance between the liquidator and himself, and a copy of the caveat documents. The recitals of the draft Deed state that the Company was placed into liquidation by an order of the Federal Court of Australia on 22 May 2017 at which time a liquidator was appointed. It provides details of outstanding loans and the equity in Mr Wang’s property and indicates that Mr Wang is seeking to repay all the creditors of the Company with a view to terminating the liquidation of the Company. The draft Deed was accompanied by the list of creditors.

11. The applicant appeared before the Tribunal on 14 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Mr Wang did not appear before the Tribunal. The applicant indicated that Mr Wang had high blood pressure and could not attend the hearing. The Tribunal made attempts to contact the following people by telephone during the hearing: the liquidator’s representative, Mr Gordon Chan, whose details were provided by the applicant and Mr Wang however neither of them answered their phones.

12. At the hearing the Tribunal explained to the applicant why it decided not to postpone the hearing for 6 months. The Tribunal noted that it considered it more beneficial to obtain evidence about the status of the liquidation and whether there was any prospect of the Company resuming trading given the period of time that has already passed since it was put into liquidation. The Tribunal also noted that it wanted to discuss with her the issues in the review and explain that it could not take into account her personal circumstances. The applicant indicated she understood and requested time after the hearing to provide information about the Company’s status. Later in the hearing, the Tribunal agreed to grant the applicant a period of 2 months, until 10 January 2018, to provide current information about the nominator’s status. The Tribunal requested the applicant to provide the Deed of Company Arrangement, if one had been entered into, or other substantive evidence from the liquidator, regarding the status of the Company.

13. No further information has been provided to the Tribunal regarding the status of the Company. The applicant did however make a further request for an extension of time, until 15 March 2018, for personal reasons. As this time has now passed, the Tribunal has decided to proceed to a decision on the information before it. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant meets the requirements in cl.186.223.

16. 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.

17. 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.

18. The applicant, who was a 457 visa holder, was nominated for the position by Medial Plus Plus Group Pty Ltd ATF Wangbingwen Family Trust. The nomination was approved on 20 February 2017 however the nominator subsequently went into liquidation. The Department was informed of the liquidation by the Company’s administrator and the delegate relied on that information, as detailed in the decision record, to find that the nominator is no longer able to employ the applicant and as such the position was no longer available to the applicant.

19. At the hearing the Tribunal discussed with the applicant the requirements in cl.186.223(4). The Tribunal also noted that the information about the nominator being in liquidation may also be considered adverse information within the meaning of r.1.13A as it suggests that the applicant may be insolvent. The Tribunal also discussed the documentary evidence provided which it explained does not appear to demonstrate that the Company has much prospect of overturning the liquidation order as the debts appear to be significantly higher than the equity in Mr Wang’s home. The Tribunal noted that there was limited evidence to demonstrate that the nominator’s business would resume normal trading despite Mr Wang’s efforts.

20. The applicant stated that she had no idea that the Company was experiencing financial difficulty. Her employer told her he would do anything to recover the Company and keep her employed. She has not been able to contact the liquidator and all the information was given to her by Mr Wang to give the Tribunal. She stated that her employer told her that he would sell his property to pay the debts and she believes he will do this.

21. The Tribunal has carefully considered the relevant evidence as follows.

22. This case ultimately turned on whether the criterion in cl.186.223(4), which requires that the position is still available to the applicant, is satisfied. The Tribunal considers that to be satisfied that the position is still available to the applicant it must be satisfied that the liquidation order has been terminated and that the business has resumed trading. The Tribunal is not satisfied on the evidence before it that this has occurred.

23. The evidence indicates that the applicant was placed into liquidation by an order of the Federal Court of Australia on 22 May 2017. While the applicant has provided a draft Deed of Forbearance, this was only a draft document and there is no evidence before the Tribunal to suggest that this deed has been executed. This draft document does not establish that the nominator is no longer in liquidation. The Tribunal has also had regard to the supporting letters from Mr Wang, the information contained in the draft Deed of Forbearance and other supporting documents and oral evidence regarding Mr Wang’s efforts to pay out the Company’s creditors and stop the liquidation process, however to date no substantive supporting evidence has been provided to the Tribunal to indicate that the order to liquidate the Company has been terminated and that the nominator has resumed trading.

24. Given the above considerations, the Tribunal is not satisfied that the position for which the applicant has been nominated is still available to her. Consequently, the Tribunal finds that the requirement in cl.186.223(4) is not met. Therefore, cl.186.223 is not met.

25. 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.

26. The secondary applicants applied as members of the first named applicant’s family unit. There is no information before the Tribunal to suggest that any of the secondary applicants meet the primary criteria for the grant of the visa. In the circumstances the Tribunal must also affirm the decision in respect of the secondary applicants.

    DECISION

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

    R. Skaros
    Member