LIU (Migration)

[2017] AATA 218

LIU (Migration) [2017] AATA 218 (3 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr XIANYING LIU
Mrs MINGXIA SUN
Mr BAIYU LIU
Mr BAISHENG LIU

CASE NUMBER:  1614011

DIBP REFERENCE(S):  BCC2016/212669

MEMBER:Rania Skaros

DATE:3 February 2017

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 February 2017 at 11:20am

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 – Nomination not approved - No discretion - Decision made in accordance with legislative provisions – Circumstances warrant referral to Minister – Social and economic benefit to regional Australia – Operation of law may have an unfair result – Challenges of recruitment and retention due to remoteness – Valuable and significant contribution to cattle farming in regional Australia – Farm has prospered under applicant’s management – Improvement of local economy with increase in cattle production

LEGISLATION

Migration Act 1958

, ss 65, 351

Migration Regulations 1994

, Schedule 2 – cl 186.223, cl 186.223(2), r 5.19(3), r 5.19(3)(c)

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 on 1 September 2016 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 to the Department of Immigration for the visas on 14 January 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 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 Beef Cattle Farmer. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination was not approved.

6. The applicant appeared before the Tribunal on 13 December 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants’ friends, Ms Marge Reynolds and Mr Phil Thouard.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets cl.186.223.

   Nomination of a position

9. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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. In addition, this criterion also requires that the nomination has been approved.

10. Mr Liu was nominated for a position by China State Farms Pty Ltd. The Department refused the nomination and China State Farms applied for review of that decision. On 1 December 2016 the Tribunal affirmed the Department’s decision to refuse the nomination.

11. On 2 December 2016 the Tribunal wrote to the applicants pursuant to s.359A of the Act and invited them to comment on the information which it explained is relevant to whether the applicant meets the requirement in cl.186.223. The Tribunal also discussed this requirement with Mr Liu in detail at the hearing.

12. Mr Liu explained to the Tribunal that he was sponsored on the 457 visa as a Corporate General Manager and stated that he has been managing the operations of the Noella Cattle Station at Charleville. The Tribunal discussed with Mr Liu the reasons for the refusal of the nomination and explained that as the nomination had not been approved he is unable to meet the requirement for the grant of the visa. Mr Liu provided a history of his travel and employment in Australia. He stated that he loved working as a cattle farmer in the Australian outback and wanted to continue to make a contribution to regional Australia.

13. Ms Reynolds and Mr Thouard also gave detailed evidence about the social and economic contribution that Mr Liu and his family have made to their community. Their evidence is set out in detail further below.

14. The Tribunal explained to the applicant at the hearing that while it acknowledged the contribution he had made to the community and the potential contribution he could make to the cattle farm industry in regional Queensland it had no discretion in the circumstances and must make its decision in accordance with the legislative provisions. The Tribunal indicated that it may consider referring the matter to the Minister and invited the applicant to provide further supporting documents about his contribution to Australia.  

15. After the hearing the Tribunal received a number of supporting letters which are referred to further below.

16. In relation to the requirements in cl.186.223, as indicated above, the relevant nomination in relation to Mr Liu was not approved. On this basis the applicant does not meet cl.186.223(2). It follows that the requirements of 186.223 are not met.

17. The secondary applicants applied on the basis of being the members of the first named applicant’s family unit. As the first named applicant has not satisfied the primary criteria for the grant of the visa and as there is nothing before the Tribunal to suggest that any of the secondary applicants meet the primary criteria for the grant of the visa, the Tribunal must therefore affirm the decision in respect of the secondary applicants.

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.

    Referral to the Minister

19. Under s.351 of the Act, the Minister may substitute a decision more favourable than the decision of the Tribunal, if the Minister thinks that it is in the public interest to do so.

20. The Tribunal has considered the oral evidence of Ms Reynolds and Mr Thouard at the hearing and to the letters of support received from members of the Charleville Community and, having regard to the current Ministerial guidelines[1], is satisfied that the applicants’ case raises issues of social and economic benefit to regional Australia and/or where the operation of the law may have an unfair result.

    [1] >

    Mr Liu is a citizen of China. He is married and has two young children. He has qualifications in veterinary science from China and his skills have been positively assessed by Vetassess as a Beef Cattle Farmer on the basis of his qualifications and employment experience in Australia in that occupation.

21. Mr Liu was sponsored on a Subclass 457 visa by China State Farms in the occupation of Corporate General Manager and was granted the Subclass 457 visa in June 2013 on that basis. After two years he was nominated by China State Farms for the permanent visa under the Temporary Residence Transition stream. In that nomination China State Farms identified the occupation as Beef Cattle Farmer. As noted above, the relevant permanent employer nomination in relation to Mr Liu was refused by the Department. The Tribunal, when reviewing the nomination decision, found that the nomination did not meet the requirement in r.5.19(3)(c) for approval as it was not satisfied that for at least 2 of the 3 years preceding the nomination application that Mr Liu had been employed full-time in Australia in the position for which he holds the 457 visa, namely as a Corporate General Manager with China State Farms, or for any other employer in the specified occupation of Corporate General Manager. The refusal of the nomination by China State Farms Pty Ltd led to the refusal of Mr Liu’s visa. The Tribunal notes that the occupation of Beef Cattle Farmer is one of the listed occupations in the relevant instrument and considers that if China State Farms had identified that occupation in the 457 nomination in respect of the applicant, it is likely that the nomination under the Transitional Residence Scheme would have been approved and Mr Liu would have met the primary criteria for the grant of the visa. The strict operation of the law in respect of the nomination appears to have led to a somewhat unfair result in Mr Liu’s case.  

22. At the hearing, Ms Reynolds stated that Mr Liu and his family are valuable members of their small rural community. She stated that the average age of residents in Charleville is 60 and that it was important to have young families coming into the community to assist older residents. She stated that their little community suffers from lack of families and that every child helps keep the local schools open. She stated that the presence of Mr Liu in their community and his management of the cattle farm at Noella station boosts the economy and brings benefit to Australian farmers as it builds the bridge between outback Australia and overseas markets.

23. Mr Thouard, who is a retired employment consultant in Charleville, stated that the challenge in rural western Queensland is recruitment and retention due to remoteness and that the presence of Mr Liu and his family adds value to the community. He stated that Mr Liu has been living on Noella Station, which is some 120 km from Charleville, and had successfully maintained and developed the operations of that property which has resulted in the increased sale of livestock. He stated that Mr Liu is committed to developing the cattle industry in Australia through his commitment to producing high quality cattle for live exports to China and Asia. He stated that if Mr Liu could not remain in Australia it is likely that Noella station would cease operating. He stated that the National Australia Bank Agribusiness Manager who recently attended the property in relation to a loan application was satisfied with the operations of the cattle station and was amazed at what Mr Liu had been able to achieve on the property.

24. The letters of support received from community members, the NAB Agribusiness Manager and the Mayor of Mureh Shire Council all speak highly of Mr Liu and his family and detail the contribution the family have made to the community over the last 6 years. The letters refer to Mr Liu’s impressive management of Noella station and his thorough knowledge of cattle production in regional Australia and cattle export to China which they see as being invaluable to improving the local economy through the increase of cattle production. The strong support for Mr Liu and his family by the Charleville community suggests that Mr Liu’s presence in Australia would be of significant social, cultural and economic benefit to Australia.

25. Having regard to the applicant’s circumstances and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.351, the Tribunal considers that this case should be referred to the Department to be brought to the Minister’s attention.

    DECISION

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

    Rania Skaros
    Member