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

1. 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).

2. 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).

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 Marketing Specialist.

5. 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 not meet cl.186.233 as a whole.

6. The delegate further found that the second and third named applicants (the applicant’s wife and son) were also not entitled to subclass 186 visas, as they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

7. The Tribunal received a review application from the applicants on 21 April 2017.  It was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Mr Konfir Kabo, as their representative and authorised recipient for correspondence for the purposes of the review.

8. On 3 December 2018, the Tribunal wrote to the applicant to advise him that information before the Tribunal suggested that the nomination for the position identified in the applicants’ visa application was not approved and that the decision to refuse the nomination was not the subject of an application for review. The Tribunal further stated that if the nomination for the position identified in their visa application had been refused and there was no pending review of the nomination refusal decision, the decision to refuse the subclass 186 visas would have to be affirmed by the Tribunal. The Tribunal noted that lodging a new nomination application would not enable the applicants to meet the visa criteria, but that ultimately, this would be a matter for the presiding Member to determine. The Tribunal asked the applicants to provide any evidence of an approved nomination or pending review of the original nomination refusal, and further asked them to clarify whether they wished to proceed with the review or withdraw their review application.

9. On 17 December 2018, the applicant wrote to the Tribunal and advised that the applicants wished to proceed with the review because it was his view that there were exceptional circumstances in their case and they intended to request that the Minister consider intervening in their case.

10. On 22 January 2019, the Tribunal wrote to the applicants to invite them to a hearing on 15 February 2019.

11. The first and second applicants appeared before the Tribunal on 15 February 2019 to give evidence and present arguments. Their agent did not attend the hearing.

12. At the commencement of the hearing, the applicants provided the Tribunal with a letter dated 20 February 2018 from the Department to the applicant, acknowledging receipt of an application for subclass 186 visas by the applicants.

13. The applicant told the Tribunal that he and his wife were aware that they needed to have a valid, approved nomination by their original nominating employer in order for their subclass 186 visa applications to succeed.  The applicant clarified that his employer, Aksara Pty Ltd as trustee for Amanakara Trust, did apply to the Tribunal for review of the Department’s decision to refuse its nomination of him but the employer’s ownership changed after the review application was lodged, and the previous owner lost the controlling share.  The applicant said that he tried to talk to the new owners, but they were unwilling to continue the nomination review in relation to him.  The applicant said that as far as he knew, the nomination was rejected by the Department on the basis that the Department was not satisfied that the employer had the financial capacity to pay the applicant the proposed salary, but this was due to the fact that at that time, the employer was a relatively new, start-up company.  However, it was now well established and doing well. The applicant said that at that time, he was not yet working there as he was waiting for the visa approval.  In the meantime, he had been sponsored, and had worked for, Jangho Curtain Wall Australia Pty Ltd, as a subclass 457 visa holder.

14. The applicant clarified that he had been in Australia for 8 or 9 years, having originally come on another work sponsorship in May 2010.  He was now working for Jangho Healthcare Pty Ltd, which was a subsidiary of the listed parent company based in Shanghai.  He further clarified that he had a double degree in business and information technology, and that his first subclass 457 visa was sponsored by Jangho Curtain Wall Australia Pty Ltd. He made a subclass 186 visa application in the Temporary Residence Transition stream on the basis of this employment, with that company as a nominator, on 22 May 2014. He was nominated as a Marketing Specialist (although his title within the company was Sales Manager).  After about 12 months of processing at the Department, both the nomination and the subclass 186 visa application were rejected. The basis for the rejections was that Jangho Curtain Wall Australia Pty Ltd’s approval as a standard business sponsor was cancelled by the Department. The applicant said that he then found a new employer, Aksara Pty Ltd as trustee for Amanakara Trust, a commercial property development company which specialised in new petrol station sites, and this company nominated him as a Marketing Specialist for a subclass 186 visa. The applicant said that he was now working again with Jangho Healthcare. The Jangho parent company, through Jangho Healthcare, acquired Vision Eye Institute Ltd, and lodged a new nomination of the applicant as a Marketing Specialist in February 2018. The applicants lodged a new subclass 186 visa application on the basis of this nomination. However, the Department rejected both the nomination and visa applications in September 2018, and review applications were lodged for both these decisions with the Tribunal in October 2018.

15. The Tribunal discussed with the applicants the fact that it had jurisdiction only to review the subclass 186 visa refusal decisions made by the Department on 3 April 2017, and was not obliged to defer making a decision on that matter because the applicants and the applicant’s current employer had pending reviews in relation to later nomination and visa refusal decisions.  The Tribunal further observed that the case law in this area was prescriptive, and that a new nomination (even by the same employer) was not sufficient to satisfy cl.186.233, as the specific wording of that clause indicated that the approved nomination had to be the same one that had been made by the original employer at the time of the visa applications. The applicants indicated that they had discussed their situation with their agent, and intended to ask the Minister to intervene in their case, pursuant to s.351 of the Act, in the event that this review application was unsuccessful.  They further indicated that they believed that the length of time they had lived in Australia, their level of integration and the applicant’s contribution to his employer, which ran a significant eye care practice throughout Australia, provided grounds for Ministerial consideration.

16. The Tribunal discussed with the applicants its view that the current Ministerial guidelines on Ministerial intervention pursuant to s.351 generally indicated that it would be inappropriate for the Minister to intervene in a case where persons had other visa applications or review applications on foot, and this would incline the Tribunal not to refer the matter to the Minister.  However, it undertook to review any material and/or submissions on this issue post-hearing.

17. Following the hearing, the Tribunal received the following additional material from the applicants:

    ·Letter from Vetassess dated 18 February 2018 certifying that the applicant’s skills have been assessed as suitable for his nominated occupation of Marketing Specialist (ANZSCO code 225113);

    ·title search made on 17 September 2014 showing the applicant as the registered proprietor of an Australian property, subject to a mortgage;

    ·letters dated 7 February 2018 and 19 September 2018 from Mr James Thiedeman, CEO of Vision Eye Institute, in support the applicant’s subclass 186 visa application;

    ·proof of enrolment of the applicant’s son (the third named applicant) at local primary school in Melbourne, February 2018;

    ·evidence of donations to Red Cross made by the applicant from 2011 onwards;

    ·Department refusal decision dated 14 September 2018 for Vision Eye Institute Ltd’s nomination of the applicant for the occupation of Marketing Specialist;

    ·Department acknowledgement dated 20 February 2018 of subclass 186 visa applications made by the applicants;

    ·letter dated 15 March 2019 from the applicant;

    ·ASIC historical extract for VEI Services Pty Ltd;

    ·letter dated 2 February 2018 from HR Executive Serena Lim of Jangho Curtain Wall Australia Pty Ltd in support of its nomination of the applicant as a Sales and Marketing Manager; and

    ·certified English translations of the applicant’s Chinese tertiary qualifications, being Bachelor of Computer Science and Technology (double degree) and Bachelor of Business Administration.

18. In his letter of 15 March 2019, the applicant confirms that:

    ·he came to Australia in May 2010, having obtained a double bachelor degree in Business Administration and Computer Science/Technology and having worked for the Jangho Group for more than 10 years since 2008. This included working in China, Singapore and Australia for Jangho Group, which was a listed Shanghai stock A share company, in China’s top 500 listed companies;

    ·he is married with a 6 year old son, and the family had settled well in Melbourne, where his wife worked as a teacher and Chinese language tutor. His son came to Australia at the age of 3 and had now started primary school here, after attending kindergarten for 2 years;

    ·the applicant was currently working for Jangho Health Care Australia pty ltd (Jangho Group’s subsidiary company in Australia), where he was in charge of marketing and assisting the company’s executives in matters of health care investment in Australia;

    ·the applicant first applied for permanent residency on 22 May 2014, sponsored by Jangho Curtain Wall Australia Pty Ltd, after he had worked for them for 4 years (since 2010) as the holder of a subclass 457 visa. It was an application in the Temporary Residence Transition stream. The nomination was refused on 20 July 2015, after the company’s sponsorship approval was cancelled. This was totally outside the applicant’s control and he did nothing wrong. The company sought review of the cancellation at the Tribunal, and the applicant sought review of his visa refusal. However, he was informed by his employer, after the company lodged its review application, that it was too risky for the company to proceed with the review and it was withdrawn. Therefore, the applicant’s visa refusal review application was unsuccessful too, but this was not due to any fault of his;

    ·his second permanent residence application was made on 18 March 2016, for which he was nominated by Aksara.  After more than 12 months, the Department refused Aksara’s nomination on 3 April 2017, on the basis that the Department was not satisfied that the company had the financial capacity to employ the applicant as a Marketing Specialist. The company appealed that decision to the Tribunal and the applicant also appealed the associated subclass 186 visa refusal.  In the meantime, the company established itself well and managed 15 petrol station site development projects across Australia. The company got the chance to bring in a strategic investor, and, after a full discussion, an ownership change took place.  The ex-owner lost the controlling share of the company and had to withdraw the Tribunal review application. The applicant’s associated subclass 186 visa application was refused and he sought review of it, which was what had led to the current hearing;

    ·subsequently, the applicant had made a third permanent residence application (this time, a subclass 186 visa application in the Direct Entry stream), nominated by Vision Eye Institute Ltd. This company was listed on the ASX and was the largest eye care provider in Australia, with more than 450 employees in Australia (including 80 ophthalmology doctors). Jangho Group currently owned Vision Eye Institute Ltd 100% via Jangho Health Care Australia Pty Ltd, a subsidiary company of Jangho Group. Jangho Group had more than 7 eye care hospitals in China, while Vision Eye Institute Ltd had a vast health care operation in Australia, with significant experience and high quality eye services, which could bring significant synergy to convert the Vision Eye brand resources to overseas markets, particularly China;

    ·the applicant was working on projects to promote health care services in China (for instance, jointly investing in China to set up new eye care hospitals, which would potentially offer significant opportunities for an Australian health care business to go global);

    ·more importantly, the applicant was working closely with the Vision Eye Institute Ltd management team and marketing department to initiate a new business development strategy, to develop and strengthen the service to Asian communities (such as language support to elderly people and young people, and more convenient eye care service access to local communities, directly/indirectly employ more ophthalmology doctors and support staff, which meant more job opportunities and more investment into Australia);

    ·Vision Eye Institute Ltd continued to support the applicant’s work in this important and strategic project for the company, hence the company nominated him for a subclass 186 visa as a Marketing Specialist in February 2018. However, this nomination and associated visa application were refused as the delegate was not satisfied that the applicant would be employed under the direct control of Vision Eye Institute Ltd. This conclusion was based on the fact that the employment contract provided to the Department was between the applicant and VEI Services Pty Ltd, and not Vision Eye Institute Ltd. This was despite the delegate acknowledging that a consolidated special purpose financial report had been submitted, which  indicated that VEI Services Pty Ltd was a controlled entity of Vision Eye Institute Ltd;

    ·the applicant understood that it was quite common for businesses to contract employees through an associated entity or subsidiary company, and that Vision Eye Institute Ltd, like other large organisations, conducted its supply and service contracts through VEI Services Pty Ltd, which was effectively its subsidiary ‘services’ company. If the employer had been given the chance to explain this to the delegate, the matter could have been successfully resolved;

    ·accordingly, given the refusals, the applicant and his employer had lodged review applications with the Tribunal, which were now pending;

    ·on a community level, the applicant noted that he was one of the key team leaders of Jangho Australia, and that in the last 3 years, the company had invested more than $500 million in Australia in new developments, such as upgrading existing facilities at eye care hospitals, assisting local communities and supporting the opening of new eye care facilities (such as in Adelaide in January 2019);

    ·he was also working on a project to take Australian doctors overseas and have them registered in China in order to expand premium health care there, while also bringing overseas doctors into training programs in Australia to accelerate the converting of Australian brands to overseas markets;

    ·when it came to the visa applications, refusals and appeals, the applicant had tried to do everything correctly and estimated his costs at well above $30,000. He had also spent years waiting for the outcome. In the meantime, he tried to be a good member of the community, donating to Red Cross in Australia for more than 8 years to try to give back to society; and

    ·he therefore believed there were exceptional circumstances in this case, and he sought the Tribunal’s assistance to refer the case to the Minister in the event that the review application was unsuccessful.

19. 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

20. 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.

1. 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.

2. 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).

3. 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.

4. 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).

5. This was the view taken in Singh v MIBP [2017] FCAFC 105[3] (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[4].

   [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

   [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that 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 to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

6. 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 refused, the visa applicant will not meet cl.186.223 or cl.186.233 (as applicable) unless there is also a review of that decision pending. It was conceded by the applicant at hearing that only the nomination by Vision Eye Institute Ltd was under review by the Tribunal, not the earlier one made in connection with this subclass 186 visa application by Aksara Pty Ltd.

7. Therefore, the Tribunal finds that cl.186.233 is not met.

8. 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 in relation to him.

9. The Tribunal must also affirm the decisions not to grant the second and third named applicants subclass 186 visas, as it finds that they do not meet 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 indicate that they meet the primary visa criteria in their own right.

10. The applicants and their agent have indicated that they intend to request Ministerial intervention pursuant to s.351 of the Act in the event of an unsuccessful outcome to this review application. This section provides the Minister with a non-compellable person discretion to intervene to make a more favourable decision if the Minister thinks that it is in the public interest to do so. There are guidelines as to what the Minister considers to be unique or exceptional circumstances, and what the Minister considers to be inappropriate to consider for intervention, on the Department's website at: >

    While the Tribunal has sympathy for the protracted processes that the applicants have undertaken to try to obtain permanent residence, which appear to have largely failed due to issues with the applicant’s employers, and while it acknowledges that the applicants have been living in Australia for some years now, it is not persuaded that it is appropriate to refer their case to the Minister at present.

11. 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

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

    Alison Mercer
    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.

    
    

interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).
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).