LIU (Migration)

[2019] AATA 3384

LIU (Migration) [2019] AATA 3384 (3 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms XIALIN LIU
Ms XIANGNING LI

CASE NUMBER:  1731079

HOME AFFAIRS REFERENCE(S):          BCC2016/2293613

MEMBER:Jennifer Cripps Watts

DATE:3 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 03 July 2019 at 3:50pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 - Employer Nomination Scheme – Temporary Residence Transition stream – nomination refused – company de-registered – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), 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 (the delegate) on 23 November 2017 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 7 July 2016. 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: cl186.311. 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 in the nominated occupation of Café or Restaurant Manager.  On 12 October 2017 the nomination application identifying the applicant in the nominated occupation, made by Fido Ditto Pty Ltd, was refused.  The applicant was sent a natural justice letter on the same day, inviting her to comment on the adverse information within 28 days after being taken to have received the letter (11 November 2017).  The Tribunal has had regard to the Department file; no response or comment was received.

5. On 23 November 2017 (well clear of the 28 day response deadline), the delegate refused to grant the applicant’s Subclass 186 visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because she was not the subject of an approved nomination. On 10 December 2017, the applicants applied for review, within time, and provided the Tribunal with a copy of the delegate’s decision.

6. Prior to constitution to the member, the applicants had a Tribunal hearing scheduled for them and, on 6 June 2019, the registry sent an invitation in writing to the applicants at the contact email address for correspondence provided by the applicant when the review application was made.  The applicant has not, since making the review application in 2017, informed the Tribunal of any change to her contact details or those of the authorised recipient.  In the hearing invitation, it was requested that the applicant respond to indicate if she would attend. 

7. After the applicants’ matter was constituted to the member, when reviewing the file, the Tribunal noticed that the applicant did not appear to be the subject of an approved nomination.  The Tribunal wrote to the applicant on 13 June 2019 to inform her of adverse information, by way of a s.359A letter.  The adverse information was that she was not the subject of an approved nomination because Fido Ditto Pty Ltd was deregistered by the Australian Securities and Investments Commission and had therefore ceased to be a legal entity.  They had a pending review application for their nomination refusal with the Tribunal, relating to the applicants’ Subclass 186 visa refusals.  The applicant was informed, however,  that on 6 May 2019 the Tribunal had made a No Jurisdiction decision because Fido Ditto Pty Ltd no longer had legal standing (Tribunal file number 1726813), meaning the applicant was no longer the subject of an approved nomination or pending review of a nomination refusal.

8. In the s.359A letter, the applicants were informed that if they did not respond by 27 June 2019 or within any extended timeframe, they would lose their entitlement to appear at a hearing to give oral evidence.

9. The Tribunal received no response to the hearing invitation, nor was any response received about the adverse information within the relevant timeframe (by 27 June 2019).  The applicant did not request an extension of time to provide a response.  The Tribunal wrote to the applicant again, on 1 July 2019, confirming no response had been received to the 13 June 2019 letter and advising the applicants they had lost their entitlement to a hearing and that the Tribunal would cancel the hearing and make a decision on the review.  As a matter of fairness, the applicants were informed that the Tribunal would give them another opportunity to provide any additional information and that a decision would not be made until after 5:00pm on Tuesday, 2 July 2019.  No response was received, nor any additional information.

10. The Tribunal hearing was cancelled and the Tribunal has proceeded to make a decision on the evidence before it.

11. There is a case note on the Tribunal electronic file indicating that the applicant called on 8 May 2019 to make a progress enquiry and was given a standard response, essentially that the matter will be constituted and reviewed as soon as possible.  Notwithstanding that the Tribunal then sent, in writing, a hearing invitation and two more letters to the applicant, the phone call on 8 May 2019 is the last communication the Tribunal received from the applicant.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is the applicant is the subject of an approved nomination by a standard business sponsor:  cl.186.223(2).  This was the determinative issue for the refusal of the visa and remains the determinative issue on the review. 

    Nomination of a position

14. 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.

15. In addition, this criterion also requires, among other things, that the nomination has been approved and has not been subsequently withdrawn.

16. The applicant has been given opportunities by the Department and the Tribunal, observing its statutory obligations, to provide information that indicates, relating to her Subclass 186 visa application made on 7 July 2016, she has an approved nomination which has identified her in the nominated occupation.   The applicant responded to neither the Department in 2017, nor the Tribunal in 2019.  She has provided no information that satisfies the Tribunal that there is such an approved nomination.

17. Therefore, cl.186.223(2) is not met.

18. 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.

    Secondary applicants

19. The applicants applied for a Subclass 186 visas in a combined application. Clause 186.311 of Schedule 2 to the Regulations requires that a secondary applicant is a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the Tribunal has found that the applicant does not satisfy the primary criteria for the grant of the relevant Subclass 186 visa, the decision to refuse the visa of the secondary applicant must also be affirmed.

    DECISION

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

    Jennifer Cripps Watts
    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.