Tang (Migration)

[2023] AATA 4267

Tang (Migration) [2023] AATA 4267 (11 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lixu Tang

REPRESENTATIVE:  Mr Guanheng Liang

CASE NUMBER:  2119015

HOME AFFAIRS REFERENCE(S):          BCC2017/1204216

MEMBER:Karen McNamara

DATE:11 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl 186.212 of Schedule 2 to the Regulations.

Statement made on 11 December 2023 at 11:24am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – program or project administrator – employment will be provided – applicant the sole director of nominating business at time of application, now has co-director providing advice and support – client base and applicant’s tasks – documentary and oral evidence – self-nomination not means to facilitate grant of visa – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.212

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 22 November 2021, to refuse to grant the application by Ms Lixu Tang (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 29 March 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/occupation of Program or Project Administrator (ANZSCO 511112).

5. On 22 November 2021, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.186.212 of Schedule 2 to the Regulations. The delegate noted that the applicant was the sole director of the nominating business and therefore was not satisfied that the applicant would be performing the tasks/duties of the nominated position on a full-time basis.

6. The applicant applied to the Tribunal on 13 December 2021, for review of the delegate’s decision and provided a copy of the primary decision.

7. The applicant appeared before the Tribunal on 14 November 2023, to give evidence and present arguments. The applicant indicated evidence be taken from Mr Xiong Yang. Despite numerous attempts to contact Mr Yang, he did not respond to the Tribunal’s telephone calls.

8. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

9. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the requirements of                cl.186.212.

   Employment will be provided

2. Clause 186.212 requires that the nominated position will provide the applicant with the employment referred to in the related nomination application.

3. In this case, the applicant was nominated for a position by Fast Manpower Pty Ltd in the occupation of Program or Project Administrator (ANZSCO 511112). The nomination was approved by the Department on 6 March 2018.

4. In refusing to grant the visa, the delegate relied on information provided by the applicant in response to the Department seeking conformation by the nominator, that the position was still available to Ms Tang.

5. In response to the Department’s request, the applicant advised that she was the sole director of the nominating business and therefore she would continue to employ herself in the position for 2 years following the grant of the visa.

6. On the basis of this information, the delegate formed the view that the applicant in her capacity as sole company director, was not in a position for which her nomination was approved, and therefore was not satisfied that the applicant may be performing tasks/duties of the nominated position on a full-time basis.

7. The Tribunal has taken into account the available documentary evidence contained on the Department and Tribunal files and oral evidence provided to the Tribunal during the hearing. The Tribunal has had the benefit of discussing with the applicant at the hearing, the company and organisational structure, its operations, projects and the precise tasks and responsibilities of the nominated position and the applicant’s role in the management of the business.

8. The Tribunal on the basis of this evidence, has formed a different view to that of the delegate and accepts the evidence presented by the applicant in addressing the requirements of cl.186.212.

9. In undertaking its assessment of whether the position to which the application relates will provide to the applicant the employment referred to in the application for approval, the Tribunal has considered a number of factors, including the tasks performed by the nominee, including her role as company director, the primary activities of the business and the scale of those activities and the operating environment in which the position functions.

10. At the hearing the Tribunal invited the applicant to comment on the delegate’s decision, primarily that the delegate formed the view that the applicant in her capacity as Company Director, was not performing the full breadth of tasks associated with a Program or Project Administrator. The applicant told the Tribunal that she is no longer the sole director and that Mr Xiong Yang (a good friend of over twenty years) joined the company as Director in April 2023. ASIC information before the Tribunal confirms Mr Yang’s appointment.

11. The applicant told the Tribunal that Mr Yang has a management background and that his role with Fast Manpower Pty Ltd, is advisory and support. The day-to-day management of the business is predominantly servicing clients by undertaking project management and administration of the client’s projects. This is undertaken by the applicant. The company’s financial management including the payment of her salary is managed by the external accountant.

12. In undertaking its assessment of the tasks and duties undertaken by the applicant, the Tribunal has considered the ANZSCO occupational dictionary with regard to the occupation of Program or Project Administrator (ANZSCO 511112).

13. At the hearing the applicant provided a comprehensive description of the tasks and responsibilities of the position as aligned to the applicant’s business size and operational requirements.

14. The applicant provided examples of the numerous projects the company has been contracted to manage and detailed her role in the management and administration of said projects. The Tribunal noted that the projects appeared to be events management. In response the applicant provided examples of the client base and the work undertaken by the applicant in the management of the work, which predominately centred on creative production associated with the fashion and media industries.

15. In submissions to the Tribunal, the representative submits in summary, the applicant in her capacity of Company Director is performing the role and obligations of the directorship as per her statutory obligations as required by the Corporations Act. As such she continues to undertake the tasks and responsibilities of the nominated position, as the core business of the company is project management.

16. The Tribunal noted that Mr Yang was listed as a witness, however he did not respond to the numerous attempts made by the Tribunal during the hearing to contact him. Post hearing Mr Yang provided a statutory declaration attesting to his role and future plans for the business.

17. The Tribunal also has before it, client references attesting to the applicant’s work and collaboration on projects and upcoming projects. Additionally, information before the Tribunal including the nominee’s bank statements and Income Statements show the nominating business has paid the nominee regular salary payments throughout the course of her employment.

18. There are aspects of this matter that attract some caution in so far as, a self-nomination may indicate to the Tribunal that the business was established as a means to facilitate the grant of a visa for the applicant.

19. However, notwithstanding the concerns of the Tribunal, the Tribunal has based its findings on the totality of the evidence before it affording weighting to the applicant’s evidence regarding her tasks and responsibilities as applicable to the nominated position, and that the applicant will be employed in this position.  

20. Having carefully considered all the evidence before it, the Tribunal is satisfied on balance that the employment referred to in the approved nomination, that is, the position of Program or Project Manager with Fast Manpower Pty Ltd will be provided to the applicant. Therefore, cl.186.212 is met.

21. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

22. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl 186.212 of Schedule 2 to the Regulations.

    Karen McNamara
    Member