Lin (Migration)

[2020] AATA 3088

Lin (Migration) [2020] AATA 3088 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yuchun Lin

CASE NUMBER:  1727545

HOME AFFAIRS REFERENCE(S):          BCC2017/1390656

MEMBER:Penelope Hunter

DATE:11 June 2020

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 11 June 2020 at 3:18pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Education Advisor – no approved nomination – nomination review application withdrawn – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 30 October 2017 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 15 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Education Advisor for her employer Aus-China Study Centre Pty Ltd.

5. The delegate refused to grant the visa because the applicant did not meet cl. 186.223 of Schedule 2 to the Regulations because the relevant nomination application lodged by Aus-China Study Centre Pty Ltd was refused by the Department on behalf of the Minister.

6. The Tribunal received an application for review of the delegate’s decision from the applicant on 8 November 2017. The applicant was represented in relation to the application for review by her registered migration agent.

7. On 20 April 2020, the Tribunal wrote to the applicant pursuant to the provisions of s.359A of the Act inviting the applicant to provide comment on information that it considered would be a reason or a part of a reason for affirming the decision under review in writing. The information related to the withdrawal of the Tribunal application by Aus-China Study Centre Pty Ltd of the application to review the decision of the Department to refuse the nomination. The Tribunal explained the relevance of the information and informed the applicant that if it relied on the information that it may finds that the relevant nomination had not been approved and the applicant may not be able to meet the requirements of cl.186.223(2) of Schedule 2 to the Regulations.

8. On 4 May 2020, the Tribunal received a requested from the applicant’s representative for an extension of a further three months to provide a comment to the Tribunal. The request was accompanied by a statement from the applicant; Applicant’s Australian Taxation Office, Notice of Assessment for the years ending 30 June 2015 and 30 June 2016, birth certificates for the applicant’s children and medical certificate confirming the applicant’s pregnancy.

9. In her letter of submission, the applicant set out that she had worked for her nominator  from 2014 to 2016, however she was unable to work at the end of 2016 due to looking after two young kids and her nominator withdrew the sponsorship. She was currently pregnant with her third baby, which was due on 25 June 2020 and claimed to be unable to provide documents and requested a 3 months extension.

10. On 12 May 2020, the Tribunal wrote to the applicant advising that it had considered the request but declined to grant a 3 months extension. The applicant was instead invited to attend a hearing of the Tribunal by telephone on 28 May 2020, to give further evidence and present arguments. The matter was scheduled for hearing during the COVID-19 pandemic. The Tribunal determined it reasonable to hold a hearing by telephone having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick.

11. On 26 May 2020, the applicant submitted a letter from Dr Safaa Al-Azraq and requested a postponement of the hearing. The letter from Dr Al-Azraq confirmed applicant’s pregnancy and that she had follow up appointments with the John Hunter antenatal clinic and stated that the applicant was temporarily unable to proceed with her application for permanent residency for the next two months.

12. On 27 May 2020, the Tribunal postponed the hearing until 5 June 2020, while it sought further clarification from Dr Al-Azraq as to the applicant’s inability to attend a telephone hearing. Particularly, the Tribunal wrote to Dr Al-Azraq and acknowledge the applicant’s pregnancy and requested further information so that it could consider the adjournment request and the doctor was asked to set out any conditions that would prevent Ms Lin speaking by telephone with the Tribunal for a hearing of  approximately 30 minutes in the next two months.

13. On 28 May 2020, the Tribunal received a letter from Dr Al-Azraq advising that the applicant had been feeling anxious lately due to her current pregnancy and was requesting to postpone the Tribunal hearing until after delivery.

14. On 29 May 2020, the Tribunal wrote again to the applicant and advised that the Tribunal had decided not to further postpone the hearing and the hearing on 5 June 2020 would proceed. The letter set out that the hearing would be by telephone and the contact number that the Tribunal had for the applicant. The applicant was told to contact the Tribunal if she wished to be contacted on another number. In addition, the hearing notice set out that the hearing would be for 30 minutes and an interpreter in the English and Mandarin languages would be provided. The correspondence further set out that if that applicant did not participate in the scheduled hearing then the Tribunal may make a decision on the review without taking further action to allow or enable the applicant to appear or the application may be dismissed.

15. On 29 May 2020 and 4 June 2020 an SMS reminder was sent to the applicant in relation to the hearing. On 5 June 2020, the Tribunal attempted to contact the applicant on the identified contact number on several occasions unsuccessfully. The Tribunal also contacted the applicant’s appointed representative who advised that he had been unable to contact the applicant since  the following day, 4 June 2020.

16. The Tribunal delayed proceeding to a decision in the event of communication from the applicant. As at the date of this decision the Tribunal has received no further communication from the applicant or explanation for her non-attendance. The Tribunal considered that the applicant had been provided with a reasonable opportunity to appear before it and in addition the relevant issue for consideration by the Tribunal had been put to the applicant in writing since 20 April 2020. The Tribunal determined to proceed to a decision on the information before it without providing the applicant with a further opportunity to appear.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE  

18. The issue in the present case is whether the nomination associated with the visa application had been approved.

    Nomination of a position

19. 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.

20. 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.

21. The applicant applied for the visa on the basis of a nomination in the position of Education Advisor by Aus-China Study Centre Pty Ltd. As set out in the decision of the delegate, submitted to the Tribunal by the applicant, this nomination was refused by the Department on behalf of the Minister on 27 September 2017.

22. The Tribunal had received an application to review the decision of the Department to refuse the nomination by the Aus-China Study Centre Pty Ltd. However, as set out to the applicant in the s.359A letter, the Tribunal accepted a withdrawal of the application for review on 28 February 2020. In her letter of submission to the Tribunal dated 4 May 2020, the applicant acknowledged that her employer had withdrawn the sponsorship. Therefore, on the evidence before it the Tribunal finds that the relevant nomination by Aus-China Study Centre Pty Ltd, the subject of the declaration when the applicant’s visa application was made, has not been approved. It follows that the applicant has not met cl.186.223(2) and cl. 186.223 of Schedule 2 to the Regulations is not met as a whole.

23. The Tribunal also notes that in her submission the applicant referred to her employer withdrawing the sponsorship which indicates that the applicant may not be able to satisfy cl. 186.223(4). As well the applicant set out that she was unable to work for her nominating employer since the end of 2016 due to carer responsibilities. This would appear to indicate that the position is not still available to the applicant and she may not satisfy cl.186.223(4). However, as the Tribunal has already made the above finding that the nomination has not been approved and it is not necessary to consider whether additional subclasses of cl.186.223 also remains unsatisfied. 

24. 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.

    DECISION

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

    Penelope Hunter
    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.