Tan (Migration)

[2021] AATA 1421

Tan (Migration) [2021] AATA 1421 (9 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jing Tan
Mr Qi Zhang
Mr Zekai Zhang

CASE NUMBER:  2004992

HOME AFFAIRS REFERENCE(S):          BCC2017/3551035

MEMBER:Cathrine Burnett-Wake

DATE:9 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 9 April 2021 at 4:53pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Corporate Services Manager – subject of an approved nomination – 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 4 March 2020 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 28 September 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 first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Corporate Services Manager (ANZSCO 132111) with Phoenix International Cargo Pty Ltd.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because the nomination made by Phoenix International Cargo Pty Ltd was refused.

6. On 2 March 2021, the Tribunal wrote to the applicants by letter inviting them to comment on or respond to information. The particulars of the information being, the nominator’s review before the Tribunal had no jurisdiction, as such the review for the nomination did not proceed. Meaning the nominator’s application for the nominated position was not approved which was relevant as it was a requirement for the grant of the visa that the position specified in the visa application is subject to an approved nomination.

7. On 12 March 2021, the applicant’s representative wrote to the Tribunal. The submissions outlined that the applicant would not be willing to withdraw the review application even though it was conceded that there is no possibility it could succeed. It was requested by the applicant to delay the decision for the following compelling and compassionate reasons: being her son is currently undertaking year 12 and; because it is difficult to obtain a ticket to depart Australia.

8. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

11. 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.

12. 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 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.

13. During the hearing the applicant confirmed that there was no approved nomination.

14. The applicant has requested that the Tribunal delay its decision for the reasons as outlined at paragraph [7]. The Tribunal has considered the applicant’s request, however, will not be delaying the decision.

15. Based on information before the Tribunal, it finds that there is no approved nomination of an occupation relating to the applicant.

16. Therefore, cl 186.223 is not met.

17. 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.

18. The Tribunal must also affirm the decision to refuse to grant a subclass 186 visa to the second and third named applicants as they do not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they can meet the primary criteria in their own right.

    DECISION

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

    Cathrine Burnett-Wake
    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.