Lin (Migration)

[2020] AATA 229

Lin (Migration) [2020] AATA 229 (30 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Zhongyezi Lin
Ms Sunzhi Yao

CASE NUMBER:  1801149

HOME AFFAIRS REFERENCE(S):           BCC2017/2257347

MEMBER:Sheridan Lee

DATE:30 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 30 January 2020 at 12:03pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Graphic Designer – no response to s 359A invitation – not entitled to appear before the Tribunal – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), 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 Home Affairs on 4 January 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 26 June 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 Temporary Residence Transition stream, to work in the nominated position of Graphic Designer.

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 nomination application made by her prospective employer was refused.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. 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.

8. On 15 January 2020, the Tribunal wrote to the applicant, pursuant to s.359A of the Act. The letter invited the applicant to provide comment on or respond to certain information. The particulars of the information were:

   ·Ms Zhongyezi Lin was nominated for a Subclass 186 visa by Promotional Clothing Products Pty Ltd to work in the occupation of Graphic Designer. Ms Sunzhi Yao applied for the visa on the basis that she was in the same family unit as Ms Lin.

   ·On 24 November 2017, a delegate of the Minister for Immigration refused the nomination application lodged by Promotional Clothing Products in respect of Ms Lin. The company applied to the Tribunal for merits review of that decision. However, on 21 November 2019, Promotional Clothing Products withdrew the application for review.

   ·Departmental records indicated that Ms Lin was not subject to an approved nomination.

9. The letter outlined that the information was relevant to the review because under cl.186.233 of Schedule 2 of the Regulations it is a requirement that the position specified in the visa application be subject to an application for nomination.

10. It was also explained, that the information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse the grant of a subclass 186 visa.

11. The letter invited comments or a response by 29 January 2020, noting that an extension of time to respond could be requested prior to that date.

12. The applicant did not make any submissions within the prescribed period. In addition, the applicant did not request an extension of time and there has been no further communication from either the applicant or its representative at the time of the Tribunal’s decision.

13. The Courts have confirmed that where an applicant fails to provide the requested information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.[1] Accordingly, as the applicant failed to give the information requested within the prescribed period, she has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

    [1] See Singh v Minister for Immigration and Border Protection [2014] FCCA 1403, 32-39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.

14. In these circumstances, subsection 359C(2) of the Act applies and the Tribunal has decided to proceed to decision without taking any further action to obtain the information.

15. As the nomination application was refused and the applicant is not the subject of an approved nomination, the Tribunal finds that the applicant does not meet the requirement in 186.233.

16. 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.

17. As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second named applicant does not satisfy the secondary criteria for a grant of a visa, as per cl.186.311 on the basis that they are not a member of a family unit of a person who holds a subclass 186 visa.

    DECISION

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

    Sheridan Lee
    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.