Lin (Migration)

[2018] AATA 1542

Lin (Migration) [2018] AATA 1542 (6 April 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Shisheng Lin Ms Xiuhui Zhang Miss Jie Lin Master Ziqing Lin

CASE NUMBER:  1610325

DIBP REFERENCE(S):  BCC2015/2974097

MEMBER:  Kate Timbs

DATE:  6 April 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 06 April 2018 at 2:08pm

CATCHWORDS
Migration – Employer Nomination (Permanent) visa – Subclass 186 (Employer Nomination Scheme) – Applicant not subject of an approved nomination – Applicant did not attend hearing

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C
Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cls 186.223, 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 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under section 65 of the Migration Act 1958 (the Act).

1. Mr Lin applied for the visas on 12 August 2015 as the primary applicant. The delegate refused to grant the visas on 20 June 2016.

1. Mr Lin applied for review of those decisions on 8 July 2016.

RELEVANT LAW

1. To be granted the visa, Mr Lin must satisfy the primary criteria in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). To satisfy the criteria in clause 186.223(1)(a) and (2), the position to which the application relates must have been nominated in an application for approval that seeks to meet the criteria in regulation 5.19(3) and the Minister must have approved that nomination.

1. The other applicants must satisfy the secondary criteria including the requirement in clause

   186.311 that they are members of the family unit of a primary applicant who has satisfied the primary criteria and holds a Subclass 186 visa.

1. To deal with the application for review, the Tribunal considered whether Mr Lin meets the criteria referred to above.

CONSIDERATION OF CLAIMS AND EVIDENCE

Evidence considered

1. The Tribunal considered documents in the visa application file and information about the outcome of the related application for review by A&C Restaurant Pty Ltd (the company).

1. The Tribunal wrote to Mr Lin on 14 March 2018 advising him of that information and invited him to comment on it by 28 March 2018 (in accordance with section 359A of the Act). Mr Lin has not responded to that invitation and the Tribunal has made a decision without taking any further action to obtain his views on that information (in accordance with section 359C of the Act).

Nomination of a position

1. The company nominated the position to which the application relates in a relevant  application for approval. However, on 11 May 2016, a delegate of the Minister refused to approve that application. The information about the outcome of the company’s application for review of that decision is that it has been withdrawn. It follows that Mr Lin does not meet the criteria discussed above based on the company’s application for approval. The Tribunal has no evidence of another relevant application for approval and it finds Mr Lin does not satisfy clause 186.223. It will affirm the decision to refuse to grant the visa to him for that reason.

1. The secondary applicants do not satisfy the primary criteria and they do not satisfy the secondary criteria in clause 186.311 because Mr Lin does not satisfy the primary criteria. The Tribunal will affirm the decision to refuse to grant visas to them for that reason.

DECISION

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

Kate Timbs Member