LIU (Migration)

[2021] AATA 3712

LIU (Migration) [2021] AATA 3712 (14 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr QIZHI LIU
Ms XINLU YUAN
Master Lucas Yile LIU

CASE NUMBER:  1826082

HOME AFFAIRS REFERENCE(S):          BCC2017/4598719

MEMBER:Antonio Dronjic

DATE:14 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 14 July 2021 at 10:16am

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

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

CASES
MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 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 Home Affairs on 28 August 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 4 December 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 first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of cook.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 because the nomination application lodged by the applicant’s employer, Fortune Palace Seafood Restaurant Pty Ltd was refused by the Department on 17 July 2018. The delegate also refused to grant subclass 186 visa to the secondary applicants.

6. The applicants applied to this Tribunal for review of the primary decision on 6 September 2018 and were represented in relation to the review by their registered migration agent. They submitted a copy of the primary decision record with their review application.

7. On 28 June 2021, the Tribunal wrote to the applicants inviting comments on or response to the following information under section 359A:

   ·Your visa application was refused by the Department on 28 August 2018, because the nomination mentioned in cl.186.223 has not been approved.

   ·The decision not to approve the nomination by Fortune Palace Seafood Restaurant Pty Ltd was made by the Department on 17 July.

   ·Fortune Palace Seafood Restaurant Pty Ltd applied for review of this decision at this Tribunal on 26 July 2018.

   ·On 22 June 2021, the Tribunal affirmed the Department’s decision not to approve the nomination made by Fortune Palace Seafood Restaurant Pty.

   This 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 you the grant of a subclass 186 visa. This is because one of the criteria
   contained within subclass 186, namely clause 186.223 requires that the nomination
   was approved by the Minister and that nomination has not subsequently been
   withdrawn.

   This information is relevant to the second named review applicants because cl.186.311 which prescribes that the secondary applicants meet the requirement of this subclause if the applicants are members of the family unit (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa and they made a combined application with the primary applicant.

   Accordingly, if the first named review applicant is not a holder of a subclass 186 visa, the secondary applicants will not be able to meet cl.186.311the secondary applicants will not be able to meet cl.186.311.

   …

8. On 12 July 2021, the applicants’ representative responded to the Tribunal letter, submitting that the applicants understand that there is no provision for the Department to grant a Subclass 186 visas to the applicants. With the same letter, the applicants provided their consent to the decision being made without the applicants attending the hearing.

9. Relying on the authority in MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233, the Tribunal accepts that there is no minimum requirement for a ‘response’ to a s.359A invitation and that any reply directed to the information itself will constitute a response.

10. As the applicants consented under s.360(2)(b) of the Act to the Tribunal deciding the review without the applicants appearing before it, the Tribunal proceed to its decision.

11. 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

12. 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.

13. 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.

14. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 186.223 lodged by Fortune Palace Seafood Restaurant Pty Ltd on behalf of the first named applicant, has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that the first named applicant does not meet the requirements of clause 186.223 at the time of its decision.

15. 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.

16. The Tribunal must also affirm the decision not to grant the second named applicants a subclass 186 visas as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary visa criteria for this subclass, or any other subclass within Class EN, in their own right.

    DECISION

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

    Antonio Dronjic
    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.