LIN (Migration)

[2019] AATA 1266

LIN (Migration) [2019] AATA 1266 (17 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Meifang LIN
Mr Shengqiang WU
Master Kaixiang WU

CASE NUMBER:  1724683

HOME AFFAIRS REFERENCE(S):           BCC2017/2253882

MEMBER:R. Skaros

DATE:17 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 17 January 2019 at 1:03pm

CATCHWORDS
MIGRATION – Nomination (Permanent) (Class EN) visas – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Sales and Marketing Manager – nomination not approved – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360, 363
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 186.223

CASES
Hasran v MIAC [2010] FCAFC 40

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 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 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Sales and Marketing Manager with Hans 3D Hitech Industries 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 nomination of the position was not approved.

6. The applicant applied for review of the delegate’s decision and a copy of the decision record was provided to the Tribunal.

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 whether the relevant nomination of the position has been approved.

   Nomination of a position

9. 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. In addition, this criterion also relevantly requires that the nomination has been approved and has not been subsequently withdrawn.

10. The applicant applied for the visa on the basis of an employer nomination lodged by Hans 3D Hitech Industries Pty Ltd. The Tribunal is satisfied on the information before it that the nomination identified the applicant as the relevant Subclass 457 visa holder and that it was in reference to that nomination that the relevant declaration was made by the applicant in the visa application, as required by cl.186.223(1).

11. The nomination referred to above was refused by the Department on 7 August 2017. Hans 3D Hitech Industries Pty Ltd applied for review of the delegate’s decision not to approve the nomination, however, on 3 December 2018, the nominator, Hans 3D Hitech Industries Pty Ltd, withdrew their application for review of the decision not to approve the nomination.

12. On 11 December 2018 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting her to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the withdrawal of the application for review of the nomination, which the Tribunal explained is relevant to the requirement in cl.186.223(2) which requires the relevant nomination to be approved.

13. The invitation was sent to the applicant at the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 27 December 2018 the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

14. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

15. The Tribunal is satisfied that the invitation to comment was correctly sent to the authorised email and that the applicant was properly informed that a non-response may result in the Tribunal proceeding to a decision on the information before it. Furthermore, the information before the Tribunal indicates that the relevant nomination has been withdrawn and has not been approved, and given the applicant would be unable to rely on any other nomination to succeed in this review, the Tribunal considers it futile to delay making its decision in this case. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

16. As the relevant nomination has not been approved, it follows that the applicant does not meet the requirements of cl.186.223(2). Consequently, the requirements in cl.186.223 have not been met as a whole.

17. 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.

18. The secondary applicants applied for the visa on the basis of being members of the first named applicant’s family unit. The first named applicant does not meet the primary requirements for the visa and there is no evidence before the Tribunal to suggest that any of the secondary applicants meet the primary requirements for the visa. In the circumstances, the Tribunal must also affirm the decision in respect of the secondary applicants.

    DECISION

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

    R. Skaros
    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.