Liu (Migration)

[2020] AATA 5706

Liu (Migration) [2020] AATA 5706 (27 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Zhiqi Liu
Mr Tsung-Ju Wu
Mr Yi-Ting Liu

CASE NUMBER:  1923051

HOME AFFAIRS REFERENCE(S):          BCC2018/3882274

MEMBER:Terrence Baxter

DATE:27 November 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 27 November 2020 at 2:29pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Marketing Specialist – no approved nomination – time sought to process legal guardianship issues – request for Ministerial Intervention – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 351, 359, 363
Migration Regulations 1994, Schedule 2, cls 186.223, 18.311; r 1.13

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 6 August 2019 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 22 June 2018. 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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Marketing Specialist for Xingdong Pty Ltd (the nominator).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 16 May 2019 and that accordingly the applicant did not satisfy cl.186.223(2) and did not meet cl.186.223 as a whole as required.

6. The delegate also found that the second named and third named applicants could not be granted Subclass 186 visas, as they did not meet the secondary visa criterion (cl.186.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants lodged an application for review of the delegate’s decisions with the Tribunal on 19 August 2019.

8. The applicant appeared before the Tribunal by video conference on 15 July 2020 to give evidence and present arguments.

9. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.

10. The applicants were represented in relation to the review by their registered migration agent. The representative also attended the hearing by video conference.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

13. 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.

14. 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 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.

15. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Marketing Specialist approved, with the applicant as nominee, on 21 June 2018. The nomination application was refused on 16 May 2019 and the nominator sought review of that decision with the Tribunal on 5 June 2019.

16. On 28 October 2020, the Tribunal affirmed the decision not to grant the nomination application.

17. On 30 October 2020, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason, or part of the reason, for affirming the decisions under review. The particulars of the information were as follows:

    On 28 October 2020, the Tribunal affirmed the decision not to grant an Employer Nomination lodged by Xingdong Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl.186.223(1).

    If we rely on this information in making our decision, we may find that Ms Zhiqi Liu does not meet cl.186.223(2), which requires the nomination be approved, and affirm the decision under review.

    We may subsequently find that Mr Tsung-Ju Wu and Mr Yi-Ting Liu do not meet the secondary visa criterion cl.186.311, which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of a visa and who holds a Subclass 186 visa, and affirm the decision under review in respect of their applications.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 13 November 2020.

18. The Tribunal is satisfied that this invitation was properly dispatched to the applicants’ email address. On 11 November 2020, the applicants requested an extension of time to respond to the Tribunal’s invitation. On 12 November 2020, the Tribunal allowed an extension of time until 20 November 2020 to comment on or respond to the information set out in the invitation of 30 October 2020.

19. On 16 November 2020, the applicant made a written submission to the Tribunal. In the submission, the applicant:

    a.Stated that she disagreed with the decision to affirm the refusal of the nomination application but chose to respect the result.

    b.Referred to her study and work in Australia and to the birth of her son (the third named applicant) in Australia.

    c.Referred to the difficulties which she will experience in returning to China as a result of the COVID-19 pandemic.

    d.Stated that she had recently divorced from her husband, the second named applicant, and that the second named applicant holds a Taiwanese passport, as does her son. She said that her son’s travel permit to China has expired and that there have been delays in replacing the permit because of the COVID‑19 pandemic. She said that in these circumstances, the second named applicant may take her son to Taiwan, and that if he did so, having regard to the relationship between China and Taiwan, she did not know when she would see her son again. She said that this would be cruel and painful for her as a mother.

    e.Stated that she sought extra time in Australia to sort out legal guardianship issues and to arrange for her son’s legal entry into China.

20. No further response to the Tribunal’s invitation has been received. The representative requested that the applicant’s submission be treated as a request for referral for Ministerial intervention.

21. Although the applicants have not requested this, the Tribunal has considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicants have been aware since 6 August 2019 of the reasons for the visa application being refused. The Tribunal has also taken into account that the applicant was advised at the hearing on 15 July 2020 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by the nominator.

22. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cl.186.223 and cl.186.311 of Schedule 2 to the Regulations.

23. The Tribunal notes that the application for nomination for the position of Marketing Specialist has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application.

24. Therefore, cl.186.223 is not met in respect of the applicant.

25. 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.

26. In relation to the second named and third named applicants, the Tribunal notes that cl.186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 186 visa and is not the holder of a Subclass 186 visa, it follows that the second named and third named applicants do not satisfy the requirements of cl.186.311. The Tribunal finds accordingly.

    Request to the Tribunal for referral for Ministerial intervention

27. In deciding whether to refer this matter to the Minister for consideration under s.351 of the Act, the Tribunal has considered the Minister’s guidelines on ministerial powers (the Minister’s Guidelines) contained in the Department’s Procedures Advice Manual (PAM3). The Department’s policy is not binding on the Tribunal, but the Tribunal may refer to it. The Guidelines state that cases that have one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of the intervention powers. A list of cases that have such unique or exceptional circumstances is contained in the Guidelines.

28. The Tribunal has considered all the evidence in this matter and the applicant’s written submission. The Tribunal is not satisfied that it has evidence before it to establish that the applicant’s circumstances are unique or exceptional as defined in the Guidelines. Accordingly, the Tribunal has decided not to refer the matter for possible Ministerial intervention under s.351 of the Act.

29. The Tribunal notes that it is open to the applicant to make a direct request for Ministerial intervention.

    DECISION

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

    Terrence Baxter
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.