SONG (Migration)

[2021] AATA 5403

SONG (Migration) [2021] AATA 5403 (27 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JIE SONG

CASE NUMBER:  1831014

HOME AFFAIRS REFERENCE(S):          BCC2017/1713990

MEMBER:Peter Emmerton

DATE:27 September 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 27 September 2021 at 9:47am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager – subject of an approved nomination – no response to s 359A letter – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 10 October 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 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 (Cth) (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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager, ANZSCO 141111, Skill level 2.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the nomination was not approved.

6. The applicant appeared before the Tribunal on 8 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Yun Lan, Director, representing the nominating entity Lan Tian (AUST) Pty Ltd. This was combined with the hearing for MRT file reference 1827316, the nominator.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the nomination has been approved.

10. On 1 May 2017, the applicant’s sponsoring employer, Lan Tian (AUST) Pty Ltd applied for approval for a nomination for the position of Café or Restaurant Manager, ANZSCO 141111. Mr Jie Song is the nominee for the position. On 30 August 2018 the Department refused the application on the basis the nomination did not satisfy r.5.19(3)(d) of the Regulations.

11. In a separate decision, the Department refused Mr Jie Song’s subclass 186 visa application because the nomination was not approved.

12. Lan Tian (AUST) Pty Ltd and Mr Jie Song applied to the Tribunal to review the department’s decisions.

13. On 8 September 2021 the Tribunal affirmed the decision of the Department refusing approval of the nomination of an appointment made by Lan Tian (AUST) Pty Ltd for the position of Café or Restaurant Manager, ANZSCO 141111.[1]

    [1] 1827316

14. On 9 September 2021 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised that the Tribunal had affirmed the decision of the Department refusing approval of the nomination of an appointment made by, Lan Tian (AUST) Pty Ltd.

15. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the relevant nomination, they cannot satisfy the provision at clause 186.223 of Schedule 2 of the Migration Regulations.

16. The applicant was advised that if they cannot satisfy cl.186.223 the Tribunal would affirm the decision of the Department of Immigration and Border Protection refusing the visa.

17. The applicant was invited to provide a written response by 23 September 2021. The letter advised the applicant that if they did not comment or respond within the period allowed or extended, the Tribunal may make a decision on the review without taking any further action.

18. The applicant did respond to the Tribunal’s s.359A letter on 22 September 2021. The Tribunal has considered the statements made as to why they should not be disadvantaged by the nominator’s mistakes and the fact that rectifications have been undertaken by the nominator. It also notes their statement that the nominator ‘has also planned to seek judicial review on the AAT’s decision through their legal representative.’  The Tribunal has not sought additional information as it is clear that the applicant cannot satisfy an essential criterion as the nomination is not approved.

    Nomination of a position

19. 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.

20. 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.

21. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 186.223 of Schedule 2 of the Regulations.

22. Therefore, cl.186.223 is not met.

23. 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.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant’s Employer Nomination (Permanent) (Class EN) visa.

    Peter Emmerton
    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.