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

1. 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).

2. 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).

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) sought the visa in Temporary Residence Transition stream, to work in the nominated position of Interior Decorator.

5. 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 held a subclass 186 visa, and there was no evidence to indicate that she met the primary visa criteria in her own right.

6. The Tribunal received a review application from the applicants on 4 December 2017. It was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Mr Chao (Michael) Sun, to act as their representative and authorised recipient for correspondence.

7. On 14 March 2018, the Tribunal received an email from the applicants’ agent requesting to add the newborn daughter of the applicants to the review application. He provided a copy of the applicants’ daughter’s passport, which provides that her date of birth was 7 September 2017, and a copy of a Department decision dated 9 March 2018 refusing to grant her a subclass 186 visa, on the same basis as the second visa applicant’s visa was refused. She was therefore combined with the applicants in the present review application.

8. The matter was constituted to a Tribunal Member on 30 January 2020.

9. On 18 March 2020, the Tribunal wrote to the applicants, via their agent, pursuant to s.359A of the Act, to invite them to comment on, or respond, to information held by the Tribunal. The Tribunal advised that although PC Art Design Pty Ltd had applied to the Tribunal on 25 October 2017 for review of the decision to refuse its nomination, the Tribunal affirmed the refusal decision on 17 March 2020. The Tribunal further advised that as the applicant was not the subject of an approved nomination by his original employer, it appeared that he could not meet cl.186.223.  The Tribunal noted that if it found this, then this would be the reason (or part of the reason) to affirm the decision under review in respect of him.  It further noted that this would also be the reason (or part of the reason) to affirm the decision in respect of the second and third named applicants, as they would not satisfy the secondary criteria to be members of the family unit of a person who held a subclass 186 visa, as there was no evidence that they met the primary criteria in their own right.  The applicants were invited to provide a response or comments on this information by 1 April 2020, and were advised that if they failed to do so, or failed to seek an extension of time to do so by that date, they would lose their entitlement to a Tribunal hearing, and that the Tribunal might proceed to make its decision on the available evidence without taking further steps to seek their views on the information set out in the letter.

10. The Tribunal did not receive a response to its letter, or a request for an extension of time to provide comments or a response, by 1 April 2020.  No further submissions have been provided to date.

11. The Tribunal is satisfied that its letter of 18 March 2020 was sent to the email address nominated for correspondence by the applicants in the review application, and there is no evidence in the Tribunal’s electronic records that the email was undeliverable or not delivered.

12. The Tribunal notes that it has no power to extend the period to respond to an invitation when a request for an extension is received after the initial prescribed period has passed: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 at [48]. As above, no extension request was received in the prescribed period. Nor did the applicants provide comments or a response to the information in the Tribunal’s letter in the prescribed period. Accordingly, the applicants have lost their entitlement to have a hearing: s.360(3).

13. The Tribunal has considered whether to make a further request for comments or a response from the applicants, but – in view of the lack of response by the due date, the confined nature of the criterion in dispute, and the fact that the applicants have had the assistance of a registered migration agent for the conduct of their review – the Tribunal has elected not to do so and instead has proceeded to make its decision on the available evidence.

14. 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

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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).

21. Moreover, this view is consistent with the view taken in another decision, Kaur v Minister for Immigration and Border Protection [2017] FCCA 564, in which the Court cited with approval the previous case of Hasan v Minister for Border Protection [2016] FCCA 1049, to the effect that the nomination relied upon to satisfy cl.187.233 must be the one which had been made at the time of the visa application and could not be a later nomination, even if the later nomination were made by the same employer in relation to the same position as the nomination made at the time of the visa application.

22. In addition, the Tribunal notes that legislative changes took place on 18 March 2018 which also affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version. While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.186.233 in relation to a subclass 186 visa application made prior to 18 March 2018, as is the case here.

23. Given the above, the Tribunal finds that the applicant does not meet cl.186.223.

24. 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 in relation to him.

25. 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

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

    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.