Pei (Migration) - [2020] AATA 2513

Pei (Migration) [2020] AATA 2513 (2 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Shiquan Pei
Mrs Chang Chen
Miss Mia Pei

CASE NUMBER:  1730534
HOME AFFAIRS REFERENCE(S):          BCC2017/1630989
MEMBER:Alison Mercer
DATE:2 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Statement made on 02 April 2020 at 3:51pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Interior Decorator – no approved nomination – legislative amendments affecting the subclass 186 program – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018
Migration Regulations 1994, Schedule 2, rr 1.13, 5.19; cls 186.223, 186.233
CASES
Hasan v Minister for Border Protection [2016] FCCA 1049
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413
Kaur v Minister for Immigration and Border Protection [2017] FCCA 564
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 November 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 7 May 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.
In the present case, the first named applicant (the applicant) sought the visa in Temporary Residence Transition stream, to work in the nominated position of Interior Decorator.
The delegate refused to grant the visas because he found that the applicant did not meet cl.186.223 of Schedule 2 to the Regulations, which required that he was the subject of an approved nomination by the Australian employer who had nominated him originally. The delegate found that the applicant’s nominating employer, PC Art Design Pty Ltd, had its nomination of the applicant refused by the Department on 10 October 2017, and thus he could not satisfy cl.186.223. The delegate also refused to grant the second named applicant (the applicant’s wife) a subclass 186 visa, as he found that she did not meet the secondary visa criteria to be a member of the family unit of a person who…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Pei (Migration) [2020] AATA 2513
Case: [2020] AATA 2513
Decision Date: 2 April 2020

CaseChat Overview and Summary

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream, for the position of Interior Decorator. The applicant's employer, PC Art Design Pty Ltd, had its nomination for the applicant refused by the Department on 10 October 2017, a decision which was subsequently affirmed by the Tribunal on review on 17 March 2020. The Tribunal, constituted by Alison Mercer, was required to determine whether the applicant met the criteria for the visa, particularly in light of the refused nomination.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of the Migration Regulations 1994, which requires, among other things, that the position to which the application relates is the subject of an approved nomination that has not been withdrawn. The Tribunal also considered the implications of a previous refusal of the nomination on the applicant's eligibility for the visa, and whether the applicant's wife and daughter, as secondary applicants, met the relevant criteria.

The Tribunal reasoned that because the employer's nomination had been refused and this refusal affirmed on review, the applicant could not meet clause 186.223(2) or (3). The Tribunal found persuasive the reasoning in *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, which, although concerning a similar criterion for a subclass 187 visa, held that a visa application is tied to a specific nomination and declaration made at the time. Therefore, even a new nomination for the same position would not satisfy the requirement that the application was made in relation to the specific nomination declared. Consequently, the Tribunal affirmed the decision not to grant the visa to the primary applicant, and also affirmed the decision not to grant visas to the secondary applicants, as they did not meet the criteria for family members of a subclass 186 visa holder and had not met the primary criteria in their own right.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCENomination of a position 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. 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. As set out in the delegate’s decision (a copy of which was provided to the Tribunal with the review application), the nomination of the applicant for a subclass 186 visa made by the applicant’s employer, PC Art Design Pty Ltd, was refused by the Department on 10 October 2017. As stated above, the Tribunal affirmed that decision on review on 17 March 2020. Accordingly, the Tribunal finds that the applicant is not the subject of an approved nomination by PC Art Design Pty Ltd. Under the circumstances, the Tribunal must find that the applicant does not meet cl.186.223(2) or (3) and thus does not meet cl.186.223 as a whole. There is no evidence that the applicant is the subject of an approved nomination by another employer, and even if he were, the Tribunal’s view is that this would not satisfy cl.186.223. This was the view taken in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (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. The Tribunal considers that 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 is also applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is withdrawn, the visa applicant will not meet cl.186.223 or cl.186.233 (as applicable).

Decision

Reasons for decision

The Tribunal must also affirm the decision not to grant subclass 186 visas to the second and third named applicants (the applicant’s wife and daughter) as it finds that they do not satisfy the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence to suggest that they meet the primary visa criteria in their own right.DECISION The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.Alison MercerMemberATTACHMENT A186.223(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.

Ratio Decidendi

Legal Principle Established

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