LIU (Migration)

[2022] AATA 3662

LIU (Migration) [2022] AATA 3662 (13 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr KAI LIU

REPRESENTATIVE:  Ms Jing Sun (MARN: 1066431)

CASE NUMBER:  1913784

HOME AFFAIRS REFERENCE(S):          BCC2017/2294468

MEMBER:Namoi Dougall

DATE:13 September 2022

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 13 September 2022 at 10:02am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Customer Service Manager –applicant failed to provide the requested information – nomination refused–not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.13, 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 20 May 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 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 (Cth) (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 the Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager (ANZSCO 149212).

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 Department had refused the nomination of a position application made by ABC Express International Cargo Pty Ltd (the nominating business).

6. The applicant appeared before the Tribunal on 11 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. On 29 August 2022, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting the applicants to comment on or respond to adverse information. The adverse information was that the applicant had applied for the Subclass 186 visa on the basis of a nomination of a position made by the nominating buisness and that on 21 March 2019, the Department had refused that nomination. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination and the Tribunal affirmed the delegate’s decision on 26 August 2022.

8. The applicants did not respond to the Tribunal’s letter of 29 August 2022. There has been no request for an extension of time by the relevant date. There has been no communication with the Tribunal registry by the applicants following this letter.

9. Given the circumstances of this matter, and in particular the inevitable lack of satisfaction of a visa requirement, the Tribunal will proceed to deal with this matter without attempting any further contact with the applicants. The Tribunal is permitted to proceed in this way by virtue of section 359C(2) of the Act.

10. The applicant was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the requirements of reg.186.223.

Nomination of a position

1. 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.

2. 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 reg 1.13A and reg 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.

3. The Department on 21 March 2019, refused the nomination application lodged by the nominating business and the delegate’s decision was affirmed by the Tribunal on 26 August 2022. Therefore, there is no approved nomination to satisfy cl.186.233(2) and the primary applicant does not meet cl.186.233.

4. The applicants have 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

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

Namoi Dougall
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.