Pan (Migration)

[2018] AATA 4270

Pan (Migration) [2018] AATA 4270 (24 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Liying Pan
Mr Zezheng Yu

CASE NUMBER:  1802306

HOME AFFAIRS REFERENCE(S):           BCC2017/1228787

MEMBER:Danielle Galvin

DATE:24 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 24 September 2018 at 9:23am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – approval of nomination – nomination refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 186.233

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 Home Affairs on 25 January 2018 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 31 March 2017. 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 the Direct Entry stream, to work in the nominated position of Chief Executive or Managing Director (ANZSCO 111111).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations because the nomination of the position relating to the applicant was not approved.

6. The applicants were represented in relation to the review by their registered migration agent.

7. For the following reasons, the Tribunal has concluded 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.186.233.

   Nomination of a position

9. Clause 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.

10. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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.

11. An application for approval of the nominated position in relation to the applicant was made by NINE DINGS PTY LTD. The Department refused that nomination and NINE DINGS PTY LTD applied to the Tribunal for review of that decision. On 9 July 2018 the Tribunal affirmed the Department’s decision not to approve the nomination.

12. On 18 July 2018 the Tribunal wrote to the review applicant in accordance with the requirements of s.359A inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the Tribunal’s decision to affirm the review of the nomination.

13. The applicant sought an extension of time in which to comply with the invitation and on 3 August 2018 the Tribunal wrote in reply extending the required compliance date until17 August 2018.On 17 August 2018 the agent for the applicant sent an email to the Tribunal pointing out an error in the Tribunal correspondence in relation to the type of visa in issue and that their client made no further comment in relation to the invitation to comment.

14. On 28 August 2018 the applicant was invited to attend a hearing scheduled for 17 September 2018 at the Tribunal. The applicant responsed to the invitation by stating that the application was not withdrawn and confirmed that they would attend the hearing as scheduled.

15. However, on 13 September 2018 the applicant’s agent sent an email to the Tribunal advising that the applicant had decided not to attend the hearing.

16. On the evidence before it, the Tribunal finds that the nomination has not been approved. The applicant does not meet the requirements in cl.186.233(3) and does not meet cl.186.233 as a whole.

17. The applicant has only sought to satisfy the criteria for a subclass 186 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.

18. The secondary applicant, Zezheng Yu, applied on the basis of being a member of the family unit of the main applicant, Lyping Pan. As the Tribunal has found that the first named applicant does not meet a requirement of the visa, and there is no evidence to indicate that the secondary applicant meets the primary criteria for the visa, the Tribunal must also affirm the decision in respect of the secondary applicant.

19. Therefore, cl.186.233 is not met.

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

    Danielle Galvin
    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.