LIAO (Migration)

[2018] AATA 5387

LIAO (Migration) [2018] AATA 5387 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division  

APPLICANTS:  Mr Yongqiang LIAO
Mrs Haiyan Jiang
Mr Yifan Liao

CASE NUMBER:  1727053

DIBP REFERENCE(S):  BCC2016/4281740

MEMBER:Mr S Norman

DATE:8 November 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 08 November 2018 at 9:50am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – General Manager – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.233, 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 2 November 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 for the visas on 19 December 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 the Direct Entry stream, to work in the nominated position of General Manager (ANZSCO: 111211). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the Department refused the nomination application by decision of 31 August 2017.

6. The applicants (represented by the first named applicant – Mr Yongqiang LIAO) appeared before the Tribunal on 19 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is does the applicant meet cl.186.233(3) of Schedule 2 to the Regulations.

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii). 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.

10. As noted above, the delegate refused to grant the visa because the primary applicant did not meet cl.187.233 of Schedule 2 to the Regulations because on 31 August 2017, the nomination lodged by the nominator (Kingstone Building Material Supplies P/L) was refused. By letter of 31 August 2017, the Department requested the applicants’ comment about the refusal of the nomination application. The delegate noted the applicants’ migration agent contacted the Department ‘on a number of occasions’ and advised them to proceed to ‘make a decision so the applicants could ‘lodge a valid review application with the AAT’. The delegate then considered the information before them and determined that the first named applicant did not meet cl.186.233(3); and therefore did not meet cl.186.233.

11. Next, the delegate assessed the application within the other streams within this visa subclass. Regarding the Temporary Residence Transition Stream, the delegate noted that pursuant to cl.186.223(1)(a), the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the nomination only sought to meet the requirements of r.5.19(4), the first named applicant was not found to meet the criteria in cl.186.223. Next, the delegate assessed the visa application under the Agreement stream. However and again, the nomination only sought to meet the requirements of r.5.19(4), and therefore, the first named applicant does not meet the criteria in cl.186.242.

12. Next, the delegate also considered the visa application pursuant to the secondary criteria (cl.186.311). After noting neither the first named applicant nor any member of their family is a member of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa, the delegate found that cl.186.311 was not satisfied.

13. As clauses 186.233, 186.223, 186.242 & 186.311 were not satisfied, the delegate refused the visa application for a Employer Nomination Scheme (subclass 186) visa.

14. At the Tribunal hearing, the first named applicant (here-in-after the applicant) told the Tribunal he had worked as a Product Executive Officer for a shipyard company in Guangzhou China until January 2018; and from January 2018 he had worked as the General Manager of a tourist company in Guandong province. The applicant said he had studied up to the Bachelor degree level in China (Project Management). He also said the nominating business engaged with him when he was working in the shipyard company, and due to inter alia that relationship, he was offered the position in the nominating business. The applicant also said that he was currently in Australia on a Tourist visa, that his son was presently studying and residing in Australia on a Student visa and that his wife was presently residing in Australia on a visa granted due to being the mother of the applicant’s son.

15. By s.359A letter dated 24 October 2018 (dispatched by email to the authorised recipient), the Tribunal wrote to the applicant and advised that on 23 October 2018, the Tribunal had affirmed the Department decision to refuse the nomination application by the nominating employer (Kingstone Building Material Supplies P/L).  The applicant was also advised that this information is relevant because cl.186.233(3) requires that the nomination made in relation to him by his nominating employer has been approved. The Tribunal also advised that subject to their comments, if the Tribunal relies on this information it may find that the nomination in relation to him (and his family members) has not been approved and consequently the decision under review would be affirmed. The applicant was requested to respond in writing by 7 November 2018. At the time and date of this decision, no response had been received by the Tribunal. That being said, as the delegate’s decision to refuse the nomination approval has been affirmed by the Tribunal, cl.186.233(3) has not been met. After considering all the evidence, the Tribunal is also not satisfied that cl.186.233 is met.

16. Next, the applicant 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.

17. Finally, cl.186.311 requires inter alia that an applicant is a member of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of that visa. As neither the first named applicant, nor any family member, has satisfied the primary criteria for the grant of the subclass 186 visa, I am not satisfied that cl.186.311 has been met.

    DECISION

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

    Mr S Norman
    Member