Liu (Migration)

[2020] AATA 3230

Liu (Migration) [2020] AATA 3230 (16 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hui Liu

CASE NUMBER:  1724272

HOME AFFAIRS REFERENCE(S):          BCC2017/2309657

MEMBER:Mr S Norman

DATE:16 June 2020

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 16 June 2020 at 2:48pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – the Direct Entry stream – Finance Manager –nomination refused –not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 5.19, 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 Immigration and Border Protection on 6 October 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for the visa on 29 June 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). 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.

3. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Finance Manager (ANZSCO 132211). The delegate refused to grant the visa because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 22 April 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Roman Sulovsky (representing the associated nominator). The applicant was represented in relation to the review by her registered migration agent.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant (and witness). After having inter alia received (and discussed) the material issues at the hearing, the Tribunal is satisfied the applicant was given a fair opportunity to present their case.

6. 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

7. By email of 10 December 2019, the Tribunal advised the applicant that it appeared they had departed Australia and did not have any visa to return.[1] By agent email of 11 December 2019, the Tribunal was advised the applicant wished to proceed with the merits review application.[2]

   [1] Tribunal – folio 19. 

   [2] Tribunal – folio 20.

8. That being said, cl.186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

9. On 24 August 2017, the nomination application lodged by R & T (Australia) Pty Ltd was refused by the Department. On the same date, a letter was sent to the applicant through her migration agent, giving her an opportunity to comment on the nomination refusal. The applicant responded on 22 September 2017, stating that her nominator had lodged a merits review application. On 6 October 2017, the applicant’s agent requested the decision be made on the visa application while the applicant was in Australia. On 6 October 2017, the delegate found that the applicant had not satisfied cl.186.233(3); or cl.186.233.

10. Next, the delegate assessed the applicant under the Temporary Residence Transition stream. Under cl.186.223, the position to which visa application relates must have been nominated and approved under r.5.19(3). Since the correlating nomination did not seek to meet the requirements of and was not approved under r.5.19(3), the applicant did not meet cl.186.223. Further, the delegate assessed the applicant under the Agreement stream. However, as the correlating position was not nominated by an employer in accordance with a Labour Agreement, the applicant did not meet cl.186.242. The delegate then refused to grant the applicant the Subclass 186 visa.

11. By s.359A letter dated 13 May 2020 (emailed to the authorised recipient), the applicant was advised that on 12 May 2020, the Tribunal had affirmed the Department decision not to approve the nomination in relation to them made by their nominating employer, R & T (Australia) Pty Ltd. Further, that this information was relevant because cl.187.233(3) requires that the nomination made in relation to them by their nominating employer has been approved. Also, if the Tribunal relied on this information, it may find that the nomination in relation to them has not been approved and consequently the decision under review would be affirmed. The applicant was then invited to give comments on or respond to the above information in writing, by 27 May 2020. At the time and date of this decision, no material response had been received by the Tribunal.

12. Therefore, and based on the evidence before it, the Tribunal is not satisfied the applicant has met cl.186.233(3); or cl.186.233.

13. The applicant has only sought to satisfy the criteria for a Subclass 187 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

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

    Mr S Norman
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)    The Minister has approved the nomination.

    (4)    The nomination has not subsequently been withdrawn.

    (4A)   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.

    (5)    The position is still available to the applicant.

    (6)    The application for the visa is made not more than 6 months after the Minister approved the nomination.