Lin (Migration)

[2018] AATA 2681

Lin (Migration) [2018] AATA 2681 (19 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Xiaoming Lin
Mr Chengping He
Mr Yuchen He

CASE NUMBER:  1724290

DIBP REFERENCE(S):  BCC2017/1453735

MEMBER:John Cipolla

DATE:19 June 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 19 June 2018 at 2:40pm

CATCHWORDS
Migration – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – Nomination refused – No jurisdiction of nomination application –Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19, Schedule 186.233

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 18 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 first named applicant (hereinafter referred to as the applicant) applied for the visas on 21 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 Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream. 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 nomination lodged by ASTN E-Business Pty Ltd was refused on 8 June 2017.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the subject of an approved nomination by the sponsoring business.

8. On 8 June 2017 a delegate of the Department refused to approve the nomination in relation to the applicant made by the nominating employer ASTN E-Business Pty Ltd.  On 19 September 2017 ASTN E-Business Pty Ltd lodged an application for review with the Tribunal. On 6 November 2017 the Tribunal found that it did not have jurisdiction to review the primary decision to refuse the employer nomination application lodged by ASTN E-Business Pty Ltd.

9. On 4 June 2018 the Tribunal wrote to the applicant inviting the applicant to comment on information that the Tribunal considered could be the reason, or part of the reason for affirming the decision under review. The letter made reference to the no jurisdiction decision of the Tribunal made on 6 November 2017 and noted that cl.186.233 requires that the nomination made in relation to the applicant by the nominating employer had been approved by the Minister and further noting that the nomination relied on to satisfy this clause must be the one which was made at the time of visa application and thus it was not possible to rely on another nomination.

10. The applicant failed to respond to the Tribunal’s letter by 18 June 2018 and as a consequence the Tribunal is able to proceed to decision having regard to the evidence before it.

    Nomination in of a position

11. 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).

12. 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.

13. As has been noted above the nomination lodged by ASTN E-Business Pty Ltd was refused by a delegate of the Department of Immigration on 8 June 2017. The application for merits review lodged by ASTN E-Business Pty Ltd on 19 September 2017 with the Tribunal was the subject of a ‘no jurisdiction’ decision by the Tribunal on 6 November 2017. The evidence before the Tribunal indicates that the applicant is not the subject of approved nomination by the nominating employer and the applicant on this basis is unable to meet the requirements of cl.186.233 of the Migration Regulations.

14. Therefore, cl.186.233 is not met.

15. The applicant has 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.

    DECISION

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

    John Cipolla
    Senior Member