QIN (Migration)

[2018] AATA 5698

QIN (Migration) [2018] AATA 5698 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Qichao QIN
Mr Caleb Zhang
Mr Zhigang Zhang

CASE NUMBER:  1705442

HOME AFFAIRS REFERENCE(S):           BCC2016/2392622

MEMBER:Karen McNamara

DATE:18 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2018 at 9:22am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Project Administrator –nomination application refused –  not the subject of an approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 359A, 360, 363A
Migration Regulations 1994, r 1.13, Schedule 2, cls 186.223, 186.311

CASES
Hasran v MIAC [2010] FCAFC 40

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 6 March 2017 to refuse to grant Ms Qichao QIN

   
   

   Mr Caleb Zhang and Mr Zhigang Zhang (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 18 July 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 first named applicant Ms Qichao Qin (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Project Administrator.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because on 13 January 2017, the nomination lodged by Good Luck Imports & Exports Pty Ltd, being the nomination referred to in paragraph 186.223(1), was refused by a delegate of the Minister for Immigration and Border Protection.

6. As the nomination has been refused, regulation 186.223 is not met.

7. The delegate found in regard to the dependant applicants (Mr Caleb Zhang and Zhigang Zhang), as the applicants are not a member of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa, cl.186.311 is not satisfied by Mr Caleb Zhang and Mr Zhigang Zhang.

8. The applicants applied to the Tribunal on 21 March 2017 for review of the delegate’s decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicants satisfy cl.186.223 and cl.186.311 specifically cl.186.223(2).

    Nomination of a position

11. 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.

12. 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.

13. On 26 November 2018, the Tribunal affirmed the decision refusing the approval of the nomination made by Good Luck Imports & Exports Pty Ltd.

14. On 30 November 2018, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review.  The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Good Luck Imports & Exports Pty Ltd, which the Tribunal explained was relevant to them meeting cl.186.223(2), which requires the nomination to be approved.  As the nomination has been refused, regulation cl.186.223(2) is not met.

15. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 14 December 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

16. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

17. Having considered the evidence before it, the Tribunal finds that the primary applicant does not satisfy cl.186.223(2). Therefore, cl.186.223 is not met.

18. As the primary applicant is found not to have met the prescribed criteria for a Regional Sponsored Migration Scheme visa, the secondary applicants Mr Caleb Zhang and Mr Zhigang Zhang as members of her family unit therefore are also unable to satisfy the criteria for this visa class.

19. The applicants have 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

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

    Karen McNamara
    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.