Liu (Migration)

[2019] AATA 1142

Liu (Migration) [2019] AATA 1142 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yang Liu

CASE NUMBER:  1711025

HOME AFFAIRS REFERENCE(S):          BCC2016/3107830

MEMBER:Alison Mercer

DATE:28 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 28 March 2019 at 6:57pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Refrigeration Mechanic – subject of an approved nomination – nomination application refused – can only rely on nomination made at time of visa application – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
Singh v MIBP [2017] FCAFC 105

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 16 May 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 September 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. 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 Temporary Residence Transition stream, to work in the nominated position of Refrigeration Mechanic.

5. The delegate refused to grant the visa because she found that the applicant did not meet cl.186.223 of Schedule 2 to the Regulations, which required that the applicant was the subject of an approved nomination. The delegate noted that the nomination of the applicant made by his employer had been rejected by the Department on 15 April 2017.

6. The Tribunal received a review application from the applicant on 24 May 2017. It was accompanied by a copy of the delegate’s decision and an authority by which he appointed Ms Kat Tu as his representative.

7. On 3 December 2018, the Tribunal wrote to the applicant to advise him that information before the Tribunal suggested that the nomination for the position identified in the applicant’s visa application was not approved and that the decision to refuse the nomination was not the subject of an application for review. The Tribunal further stated that if the nomination for the position identified in the applicant’s visa application had been refused and there was no pending  review of the nomination refusal decision, the decision to refuse the subclass 186 visa application would have to be affirmed by the Tribunal.  The Tribunal noted that lodging a new nomination application would not enable the applicant to meet the visa criteria, but that, ultimately, this would be a matter for the presiding Member to determine. The Tribunal asked the applicant to provide any evidence of an approved nomination or pending review of the original nomination refusal, and further asked him whether he wished to proceed with the review or withdraw his review application.

8. The Tribunal did not receive any response from the applicant.  On 22 January 2019, the Tribunal wrote to the applicant to invite him to attend a hearing on 15 February 2019.

9. The applicant appeared before the Tribunal on 15 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Kat Tu.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

10. Ms Tu told the Tribunal that she represented Allcater (Vic) Pty Ltd, the applicant’s employer. She confirmed that the applicant had been employed by the company for 6 years as a Refrigeration Mechanic. She explained that the company had engaged 2 migration agents but neither of them properly advised the company about what documents it needed to provide to the Department to show that it met the relevant training benchmarks.  Furthermore, she explained that the company also tried to lodge a review application with the Tribunal in relation to the Department’s refusal of its nomination of the applicant but (again due to poor advice by a migration agent), the review application was lodged out of time and the Tribunal (differently constituted) found that it had no jurisdiction to review the nomination refusal decision.

11. The applicant and Ms Tu noted that the applicant had been in Australia for 10 years, and that these were his prime years. If he had to depart Australia now, he would lose significant connections and career opportunities. Ms Tu added that the applicant had been in continuous employment with his nominating company for years, and that the company had at all times met the requirement to have spent 2% of its payroll on training.

12. The Tribunal discussed with the applicant and Ms Tu the fact that the case law and legislation relating to the nomination requirement for a subclass 186 visa were very strict, and that a new nomination, even by the same employer that originally nominated the applicant, would not meet cl.186.223. Nor was there any discretion within the legislation to take into effect extenuating circumstances for why there was not an approved nomination, even where (as was the case here), the applicant had genuinely worked for his nominating employer for 4 years as the holder of a subclass 457 visa.

13. 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

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 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.

16. It was conceded by the applicant and Ms Tu at the hearing that the nomination made by All Cater (Vic) Pty Ltd in connection with the applicant’s subclass 186 visa application had been refused by the Department and was not under review by the Tribunal.

17. As discussed at the hearing, it is the Tribunal’s view that the review application in relation to this subclass 186 visa application cannot succeed because the original nomination of the applicant made by All Cater (Vic) Pty Ltd was refused and there is no pending review of that nomination refusal.

18. It is a requirement for the Temporary Residence Transition stream (cl.186.223) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and, on current authority, a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2]

    [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).

    [2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186)  - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

19. This was the view taken in Singh v MIBP [2017] FCAFC 105[3] (which concerned an almost identically worded criterion for a Subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.[4]

    [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

    [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

20. Although the Court’s comments were strictly obiter, they are nonetheless persuasive in relation to subclass 187 visas. As the relevant subclass 186 criteria are in the same terms, the Court’s reasoning also appears applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.186.223 or cl.186.233 (as applicable) unless there is also a review of that decision pending.  

21. Accordingly, the Tribunal must find that the applicant is not the subject of an approved nomination, as required by cl.186.223(2) and thus cannot meet cl.186.223 as a whole. He therefore cannot be granted a subclass 186 visa.

22. 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.

    DECISION

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

    Alison Mercer
    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.