TAN (Migration)

TAN (Migration) [2021] AATA 3713 (14 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms MAY YING TAN
Mr FOOK LUNG TEOH
Mr BERNARD YI PEI TEOH
Mr CONRAD LE QUN TEOH
Ms NATALIE YU RONG TEOH
CASE NUMBER:  1826648
HOME AFFAIRS REFERENCE(S):          BCC2017/2343720
MEMBER:Karen McNamara
DATE:14 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:
·cl 186.233(3) of Schedule 2 to the Regulations.

Statement made on 14 July 2021 at 1:29pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – interpreter service at Tribunal hearing – Direct Entry stream – Fleet Manager – subject of an approved nomination – anonymous allegations – nomination now approved by the Tribunal – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19; Schedule 2, cl 186.233
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 Home Affairs on 22 August 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 30 June 2017. 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 (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.
In the present case, the first named applicant Ms May Ying Tan (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Fleet Manager (ANZSCO 149411)
On 22 August 2018, the delegate refused to grant the visas because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations, because on 18 July 2018, the nomination application lodged by P & J Group was refused by a delegate of the Minister for Home Affairs.
The applicants applied to the Tribunal on 12 September 2018, for review of the delegate’s decision.
ADVERSE INFORMATION – Invitation to comment
On 22 March 2021, the Tribunal wrote to the applicant and nominee under s.359A of the Act. The invitation seeking comment and further information from the applicant, included the following;
‘ There is information before the Tribunal by way of allegations claiming that the
application nominating you for an Employer Nomination (Subclass 186) visa, is
fake and made for the sole purpose of facilitating a permanent residency visa. The allegations are as follows;
o The nominee has never worked for P&J Group (Australia) Pty Ltd as a
Fleet Manager and that the position does not exist. The nominee does not
possess the experience or qualifications she claims in her application and
since moving to Sydney in 2017 she has been helping out in a restaurant.
o P & J Group (Australia) Pty Ltd is owned by the nominee’s biological sister,
Ms Su Hooi Tan, who paid a third party to be named as the Director of P&J
Group (Australia) Pty Ltd to avoid suspicion.
o The sisters have conspired to lodge a fake application including nominating
a high salary to avoid the IELTS test requirement, as the nominee does not
have a good English foundation, she is almost unlikely to meet the English
requirement.
o Based on the declared financial income of the business, it is illogical for the
nominator to pay the nominated salary amount. The applicant has never
issued a PAYG to the nominee and the nominator is in debt to the ATO.
Any payments made to the ATO have been made for the sole purpose to
support the fake application.
o The nominator and others have conspired to file another application with
the Department. The allegations claim that Su Hooi Tan's de-facto spouse,
Boon Fei Koo, who is a Permanent Resident will claim that May Ying Tan is
his de facto spouse and sponsor her application for Permanent Residency,
or alternatively, May Ying Tan's husband, Fook Lung Teoh will pretend to
be Su Hooi Tan's de facto spouse and get her to sponsor his Permanent
Residency application.
If the Tribunal relies on this information, it may not be satisfied that the nomination
application meets the requirements of regulation 5.19(4) and the decision under review
may be affirmed. As such, the Tribunal may then find that your subclass 186 visa
application is not subject to an approved nomination and does not meet the
requirements of cl.186.233(3).
Additionally, the above information is relevant because cl.186.233(4A) requires 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.
If the Tribunal relies on this information, it may not be satisfied that your application
meets the requirements of cl.186.233(4A). The Tribunal may then find that the application does not meet the requirements for approval of the subclass 186 visa application and the decision under review may be affirmed.’
The Tribunal sought response from the applicant by 6 April 2021.
The applicant responded to the Tribunal on 6 April 2021, by way of a Statutory Declaration signed and declared on 5 April 2021.
The applicant in her statutory declaration dated 5 April 2021 submits;
‘There are some truth to the allegations made, however, I do not see the relevance to how these information would form part of an unfavourable decision.
Nevertheless, there are several points that are simply untrue. I am thankful that the Tribunal has not made up its mind on these preposterous information.
My sister, Su Hooi Tan is the sole shareholder of P&J Group (Australia) Pty Ltd. She previously ran this business as Fleet Manager and invited me to take over when she was planning to start a family back in 2016. We have never concealed this fact. She was named as the contact person for P&J Group (Australia) Pty Ltd for the refused subclass nomination 186 application and I have always declared her as my sister in my previous visa applications, eg. as required in Form 80.
I respectfully request the Tribunal review my resume and information submitted for my subclass 186 visa application. Contrary to the what is being alleged, I have not declared in my subclass 186 visa application that I possessed work experience as a Fleet Manager. In 2008, I came to Australia after completing my high school in Malaysia to further my studies. I understand that the education I received in Australia along with my work experience back in Malaysia was sufficient to meet the requirements of the subclass 186 visa.
Mu husband owns a restaurant and I do assist him from time to time. I was advised by my legal representatives that the conditions to my bridging visa does not contain work limitations and that my obligations towards P&J Group (Australia) Pty Ltd truly begins if my subclass 186 visa is approved. On this point, I'd like to take the opportunity to say that the allegations of a 'fake application' and submitting a Partner visa are outrageous and illogical because we are also eligible to apply for permanent residency under the Business Migration program, which do not contain an assessment that has that level of subjectivity.
Ialso reject the allegation that I do not have a good English foundation as I receive my education in Australia and Malaysia, a Commonwealth country where English is widely-used.. I am able to obtain the score of 6.0 IELTS but as there is no legal requirement for me to do so, I was advised that by taking the test, it would merely offer a 'cosmetic' effect , one that may have had some 'utility' at the Departmental level but certainly not at the level of decision-making the Tribunal provides. However, if it lends assistance to the Tribunal I am happy to take the IELTS test. Alternatively , I trust that at the Tribunal hearing, the Tribunal will be able to ascertain the same.
I would like to point out that I applied for the subclass 186 visa application under the direct entry stream which does not require me to commence my employment with the nominator. Therefore the matter raised regarding PAYG would not be relevant. Nonetheless with respect for the Tribunal, as I am employed by P&J Group (Australia) Pty Ltd, I do in fact receive PAYG.
I have consulted the Director of P&J Group (Australia) Pty Ltd and my sister the sole shareholder of the company. I believe that the company does not have any adverse information, including persons associated with the company.’[1]
[1] Transcribed as prepared and submitted by the applicant
On 6 May 2021, the applicants represented by Ms May Ying Tan appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Su Hooi Tan (the nominator) and Mr Lawrence Gao (Accountant & Tax Agent) and Mr Zhe Hu (Office Manager) in the related matter for the nomination review application (AAT Case file 1822866). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
Prior to the commencement of the hearing the interpreter advised that she was accredited in Cantonese but could speak Mandarin. The applicant and nominator confirmed that they could speak Cantonese and were willing to proceed using a Cantonese interpreter. The Tribunal pointed out to the applicant and nominator that it was important that they fully understood the hearing process and the Tribunal’s questions. The applicant and nominator advised that they were happy to proceed with the interpreter that had been engaged. During the course of the hearing the Tribunal regularly intervened to ensure the applicant understood the questions and the interpreter. The applicant advised that she did.
The Tribunal was unable to conclude the hearing in the allocated timeframe and adjourned the hearing to a later date.
On 10 May 2021 the Tribunal wrote to the applicant via the authorised representative seeking confirmation as to whether the applicant and nominator wished to continue the resumed hearing using an accredited Cantonese interpreter or wished to utilise the services of an accredited Mandarin interpreter.
On 11 May 2021 the representative responded to the Tribunal, advising ‘In relation to interpreter, as also outlined previously in the responses to the hearing invitation on 05 May 2021 prior to the first hearing, the applicants requested for an accredited Mandarin interpreter. However, at the hearing, the Tribunal provided an accredited Cantonese interpreter. Though the applicants are able to communicate in Cantonese, their proficiency is not as good as in Mandarin language. In addition, upon listening to the recording, there were errors in the interpretation and we submit that it’s worth revisiting the important points the Tribunal wishes to rely on, for clarity. Thus, we reiterated and reconfirm our request for an accredited Mandarin interpreter.’
On 25 May 2021 the hearing was resumed. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal exercised its discretion to hold the hearings by telephone. The hearings were held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent and lawyer. The representative and the lawyer attended the Tribunal hearing.
On 25 May 2021, the Tribunal received anonymous allegations pertaining to the applicant’s employment with the nominator. On 26 May 2021, the Tribunal wrote to the applicant and nominee under s.359A of the Act. The invitation sought comment and further information from the applicant, including the following;

‘ On 25 May 2021 (post hearing) the Tribunal received allegations that the visa applicant is not working in the nominated role or the venue they are supposed to be working at. The informant claims the visa applicant is working for a different employer and provided the address of a restaurant located at 275 Beamish St, Campsie.’

The Tribunal sought response from the applicant and nominee by 9 June 2021.
The nominee in her statutory declaration dated 9 June 2021 submits;
‘ I am writing in response to the AAT’s invitation to comment letter, dated 26 May 2021, for the AAT case number 1826648. Particularly, to another allegation received by the AAT after the hearing of the case that took place on 25 May 2021.
I want to firstly thank the Tribunal again, that it has kept an open mind on these preposterous allegations that continue to be directed at my case.
My position and what I said in my statutory declaration previously are still the same, that all I said and provided to the Department, and the Tribunal during the appeal process including at the hearing, are all true and accurate -including that I have been working with the company P&J Group as their Fleet Manager. I also respectfully must again ask the Tribunal to review the relevance of the information when deciding about my subclass 186 visa, along with what I have declared in the past about any allegations to my case.
The allegation stated that I am not working at P&J Group, but I work at the restaurant located at 275 Beamish St, Campsie.. The allegation is incorrect. I am not employed by the restaurant in question. The Restaurant is owned by my husband. It is a business run by my family. It is completely understandable for me to help my family restaurant during my free-time, as the restaurant is still open after I get off from work. Although my husband has hired staff for his restaurant, the restaurant can still be short-handed at times, depending on the number of customers. In other words, I still maintain the full time position of fleet manager at P&J Group, but I use my free time to help out my family’s restaurant when I am needed. Furthermore, I often take my children to visit their father and eat at the restaurant after work.
I am unsure of the motives behind these continuous baseless allegations to my case and my sister's. If the Member has concerns over these allegations that may impact the case, I am more than happy and prepared to have further hearing to outline it. I put my trust to the Member's good judgement and consideration of all the relevant things to my case.’[2]
[2] Transcribed as prepared and submitted by the applicant
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements of cl.186.233(3).
Nomination 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 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 reg 1.13A and reg 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.
The nominating employer, P&J Group (Australia) Pty Ltd, applied to the Department of Immigration and Border Protection for approval of a nomination in relation to the position of Fleet Manager (ANZSCO 149411). That nomination was refused by the Department and consequently the applicants visa applications were refused.
P&J Group (Australia) Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1822866). On 14 July 2021, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19 of the Regulations. Therefore, the applicant satisfies cl.186.233(3) of Schedule 2 to the Regulations.
The second named applicant (Mr Fook Lung Teoh), third named applicant (Mr Bernard Yi Pei Teoh), fourth named applicant (Mr Conrad Le Qun Teoh) and fifth named applicant (Ms Natalie Yu Rong Teoh), applied on the basis of being a member of the family unit of the first named applicant (Ms May Ying Tan). The application by Mr Fook Lung Teoh, Mr Bernard Yi Pei Teoh, Mr Conrad Le Qun Teoh and Ms Natalie Yu Rong Teoh will be determined by reference to the outcome of Ms May Ying Tan’s application on remittal to the Department for consideration.
Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:
·cl 186.233(3) of Schedule 2 to the Regulations.
Karen McNamara
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.

[2021] AATA 3713

14 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction