Shi (Migration) - [2019] AATA 1137

Shi (Migration) [2019] AATA 1137 (28 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Xiaowei Shi
Mrs Yingying Yang
Master Taiyang Shi
CASE NUMBER:  1708762
HOME AFFAIRS REFERENCE(S):           BCC2016/1189241
MEMBER:Alison Mercer
DATE:28 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Statement made on 28 March 2019 at 5:15pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Marketing Specialist – subject of an approved nomination – nomination application refused – new nomination application lodged – can only rely on nomination made at time of visa application – appropriateness for Ministerial referral – pending review application for recent subclass 186 visa application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233
CASES
Singh v MIBP [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 Immigration and Border Protection on 3 April 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 18 March 2016. 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) is seeking the visa in the Direct Entry stream, to work in the nominated position of Marketing Specialist.
The delegate refused to grant the visas because she found that the applicant did not meet cl.186.233 of Schedule 2 to the Regulations, which required that he be the subject of an approved nomination by an Australian employer. The delegate found that a nomination of the applicant by his Australian employer, Aksara Pty Ltd as trustee for Amanakara Trust, had been refused by the Department on 14 February 2017. While the delegate noted that the applicant had requested that the delegate not make a decision on the visa applications until a review of the nomination refusal by this Tribunal (differently constituted) had taken place, the delegate found that the Department was under no obligation to defer its decision on the visas for this reason. The delegate therefore found that the applicant did not meet cl.186.233(3) and thus did…

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: Shi (Migration) [2019] AATA 1137
Case: [2019] AATA 1137
Decision Date: 28 March 2019

CaseChat Overview and Summary

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, subclass 186 (Employer Nomination Scheme), Direct Entry stream, for the occupation of Marketing Specialist. The applicants sought review of decisions to refuse their visa applications. The core of the dispute revolved around the validity of the nomination lodged in support of the visa applications.

The Tribunal was required to determine whether the applicants could rely on a nomination that had been refused by the Department, and subsequently, whether a new nomination by a different employer could satisfy the visa requirements. Specifically, the Tribunal had to consider the legislative criteria for subclass 186 visas, particularly clause 186.233, which mandates that the position to which the visa application relates must be the subject of an approved nomination and that the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that the applicants could not rely on the original nomination by Aksara Pty Ltd because it had been refused by the Department and the subsequent appeal to the Tribunal had been withdrawn. The Tribunal held that a subsequent nomination by a different employer, Vision Eye Institute Ltd, could not satisfy the criteria, as it was a requirement that the position be the one in relation to which the declaration was made as part of the visa application. This requirement could not be met by a later nomination, even by the same employer in respect of the same position, let alone a different employer.

Consequently, the Tribunal affirmed the decision not to grant the applicants the visas. The Tribunal also noted that it would be inappropriate for the Minister to consider the matter under his s.351 power due to pending review applications for the most recent subclass 186 visa applications and the associated nomination refusal.

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 186.233 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. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position. 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. It was conceded by the applicants at the hearing that the nomination made in connection with these subclass 186 visa applications, made by Aksara Pty Ltd (ATF Amanaksara Trust), was refused by the Department, and although that refusal decision was appealed to the Tribunal, that review application was subsequently withdrawn by Aksara Pty Ltd. Tthe applicants lodged subsequent subclass 186 visa applications with a new nominator, Vision Eye Institute Ltd. The refusals of those visas and that nomination are presently before the Tribunal (differently constituted). As discussed with the applicants at hearing, it is the Tribunal’s view that the review application in relation to these subclass 186 visa applications (made on 18 March 2016) cannot succeed because the original nomination of them by Aksara Pty Ltd was refused and there is no longer any pending review of that nomination refusal. It is a requirement for both the Temporary Residence Transition and Direct Entry streams (cl.186.223 and cl.186.233 respectively) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer[1], and on current authority, a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria[2].[1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the[2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186) – visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

Decision

Reasons for decision

This is because, as discussed with the applicants at the hearing, one of the factors listed under the section the website cited above of cases it would be inappropriate for the Minister to consider is where ‘the person has an ongoing application for merits review of a visa decision with a relevant review tribunal.’ In this case, the Tribunal is satisfied that the applicants have a pending review application with the Tribunal (differently constituted) in relation to their most recent subclass 186 visa applications, for whom the sponsor was Vision Eye Institute Ltd (which also has a pending review with the Tribunal in relation to the refusal of its nomination). Accordingly, while these review applications remain undetermined, the Tribunal considers it inappropriate to refer this matter to the Minister for consideration of his s.351 power. However, it remains open to the applicants to do so directly, if they wish, or for them to request this of a differently constituted Tribunal in future, should their separate pending subclass 186 review be unsuccessful. DECISION The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.Alison MercerMemberATTACHMENT A186.233(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.

Ratio Decidendi

Legal Principle Established

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