SUN (Migration)

[2019] AATA 2941

SUN (Migration) [2019] AATA 2941 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ziwei SUN

CASE NUMBER:  1802430

HOME AFFAIRS REFERENCE(S):           BCC2017/2332781

MEMBER:Jennifer Cripps Watts

DATE:26 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 March 2019 at 3:54pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Customer Service Manager – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
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 16 January 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 June 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager (ANZSCO 149212).

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 identifying the applicant in the position was refused.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is identified in a nomination, in the position of Customer Service Manager (ANZSCO 149212), which has not ceased.

8. The nomination application identifying the applicant in the position was lodged on 30 June 2017 and refused on 9 August 2017.  The applicant, at that time, held a Subclass 457 visa.  The applicant’s Subclass 186 visa was refused because he was not identified in the related nomination meaning he did not meet cl.186.223.

9. Both the nominator, Guanyu Lai trading as Sydney Finance and Property Services (Tribunal matter number 1719938), and the applicant in this matter applied for review.  On 27 February 2019, the Tribunal affirmed the decision to refuse the nomination relating to the applicant.

10. On 1 March 2019, the Tribunal wrote to the applicant, in line with statutory requirements, informing him of adverse information, that being that the nomination identifying him had been refused and it appeared he did not meet the requirements of r.186.223 of Schedule 2 to the Regulations. The applicant was invited to comment or respond by 15 March 2019. On 7 March 2019, the applicant requested an extension of time to provide additional documents in response to the Tribunal’s s.359A letter. The Tribunal carefully considered the request and reasons given for it. The applicant did not specifically ask to be given an opportunity to attend a hearing and give oral evidence. However, given that he responded to the s.359A letter and indicated he wanted to provide more information, the Tribunal thought it appropriate to invite him to a hearing to give oral evidence and provide additional documentary evidence.

11. On 8 March 2019, the applicant was sent an invitation to attend a Tribunal hearing at 2:00pm on 26 March 2019.  This effectively granted the applicant an additional two weeks, beyond the original 15 March 2019 deadline, to comment by way of giving oral evidence at a hearing, and/or provide additional documentary information in support of his review application.  The applicant had requested a month but the Tribunal considered that two additional weeks was reasonable in his circumstances.

12. On 14 March 2019, the Tribunal received an email from the applicant, with some documents attached.  The applicant provided what he has described as ‘documents that you need in the nomination appeal’.  He said that he cannot provide ‘tax and financial aspects’ because his employer is on holiday and he requested that he be given another month to provide these documents.

13. A response to the second request for an extension of time or postponement was sent to the applicant, on 18 March 2019.  He was informed that the request had been considered but a postponement had not been granted and that the hearing would go ahead as scheduled.

14. This was also included in the letter sent by the Tribunal to the applicant on 18 March 2019:

    ‘To be granted the Subclass 186 visa that is the subject of this review application, you need to be identified in a related nomination that has not ceased.  The decision to refuse the nomination by Guanyu Lai was affirmed by the Tribunal on 27 February 2019.

    You are reminded that on 1 March 2019 the Tribunal put that adverse information to you, that being that you are not identified in a nomination relating to the visa which is the subject of the review. 

    It appears you cannot meet the criteria for the grant of the visa because you do not have an approved nomination by Guanyu Lai in the occupation of Customer Service Manager.  You may give oral evidence about this at the hearing.  In addition, please ensure any evidence you wish to rely on is provided before the hearing.’

15. The applicant provided documents to the Tribunal at various times since lodging the review application, including copies of his academic qualifications, an organisation chart, contract of employment, ABN Lookup and sponsorship approval notice for the nominator Guanyu Lai and receipts for Benchmark A Contribution training at TAFE New South Wales and Academies Australia Institute.  In the covering email, the applicant indicates he has attached these documents for ‘the nomination appeal’, which the Tribunal takes to mean the applicant’s review.

16. The applicant provided a copy of the delegate’s decision when he made the review application.  The visa was refused because the applicant did not have a nomination and he did not meet cl.186.233.  This was set out clearly in the delegate’s decision.  The applicant was informed in the s.359A letter that was sent to him on 1 March 2019 that because the nomination refusal on review with the Tribunal (relating to his visa application and refusal) had been affirmed, he does not have a nomination and that he needs to have one to meet the criteria for the grant of the visa.  The applicant was informed again, in the response to his second postponement request, that it does not appear that he can meet the criteria for the visa (for the same reason it was refused by the delegate).

17. The documents the applicant has provided to the Tribunal may have been useful in support of the nomination review.  The Tribunal has considered them but is of the view that they are not relevant in the applicant’s case.  There is nothing amongst them that indicates the applicant has a nomination that enables him to meet cl.186.233.

18. The Tribunal is satisfied that it has met its statutory obligations by informing the applicant, on 1 March 2019, of adverse information (that he is not the subject of an approved nomination or a nomination refusal that is under review) and the consequences of the Tribunal relying on the information.  The Tribunal is satisfied that the applicant was given a reasonable amount of additional time to provide comments or respond to the information at the hearing.  He was given an additional two weeks beyond the initial two weeks to provide more information and to attend a hearing to give oral evidence.  On 19 March 2019, the Tribunal wrote to the applicant in response to his request for a hearing postponement for ‘at least one month’ to provide ‘tax and financial aspects urgently’, which was not granted.  The applicant has not engaged with the Tribunal since 14 March 2019 when he requested a hearing postponement.  In the hearing invitation, it is requested that he return a ‘Response to hearing invitation’ and the relevant form was provided to him for that purpose.  It was not returned.  It is clearly stated in the 19 March 2019 letter sent to the applicant that if he does not attend the hearing a decision on the review may be made without the Tribunal taking any further action to allow or enable him to appear.  The applicant’s hearing was at 12:00pm on 26 March 2019.  The Tribunal waited until 12.30pm in case the applicant was running late or for some other reason was not at the hearing on time.  At 12:30pm, the member told the hearings team to make the applicant as a ‘no-show’.

19. The Tribunal is satisfied that the applicant was properly invited to his hearing to give oral evidence and that he was given a reasonable amount of time to provide documentary evidence relevant to the reason his visa was refused.  He did not attend the hearing and gave no reason for the non-attendance.  The Tribunal, in these circumstances, has made a decision on the evidence before it.

    Nomination of a position

20. 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.

21. 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.

22. The nomination relating to the applicant’s Subclass 186 visa application and refusal that is the subject of this review, identifying him in the position of Customer Service Manager, was not approved and the decision not to approve the nomination was affirmed by the Tribunal.  Accordingly, the applicant does not meet cl.186.223(2) which requires that the Minister has approved the nomination.

23. For this reason, 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.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Jennifer Cripps Watts
    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.