TAO (Migration)

[2020] AATA 2300

TAO (Migration) [2020] AATA 2300 (1 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr YUAN TAO
Ms YANG MENG

CASE NUMBER:  1924620

HOME AFFAIRS REFERENCE(S):          BCC2018/1060297

MEMBER:Alan McMurran

DATE:1 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 01 June 2020 at 12:29pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme – direct entry stream – related position nomination refused – no jurisdiction to review refusal – nominating company deregistered – no response to tribunal’s s 359A letter – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233(3)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 3 September 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 28 August 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) 186 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 6 March 2018. 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 first named applicant, who is a 37-year-old citizen of the People’s Republic of China (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Architect 232111. The second named applicant, as the spouse of the primary applicant, depends upon the outcome of the primary applicant’s review for her own application.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations, because the Minister has not approved the nomination.

6. On 12 May 2020, the Tribunal wrote to the applicants under s.359A of the Act, inviting a response to information that the nomination application had not been approved by the Minister. The applicants were requested to respond by 26 May 2020, failing which the applicants would lose any right to a hearing to present arguments and/or make submissions. The applicants did not respond within time, or at all. No request was made for an extension of time and the Tribunal is not aware of any information that the related nomination application is subject to any further review, or as to any circumstances relating to the applicants.

7. The applicants have lost the right to appear in the Tribunal and the Tribunal has elected to decide the review without taking any further action to obtain the applicants’ views, and to decide the matter on the information presently available.

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 the Minister has approved the primary applicant’s nomination.

    Nomination of a position

11. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

12. On the available information, the Tribunal finds that on 23 July 2019 the Department decided to refuse the nomination by Hoadley Budge Olphert Edwards Madigan Torzillo Briggs (NSW) Pty Ltd. (the nominee). That decision was subject to review by the Tribunal[1] on 24 March 2020, where the Tribunal determined it had no jurisdiction to review the Department’s decision on the nomination, which remained unchanged. The Tribunal found that the ASIC register revealed the nominator was deregistered on 4 January 2020, and the registration had not been reinstated.

    [1] Tribunal case file 1922267

13. On the information available, the Tribunal finds therefore that the applicant is not the subject of a nomination application which the Minister has approved.

14. Therefore, cl.186.233 is not met. As this criterion is not met, the Tribunal is not required to consider any remaining criteria.

15. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    Secondary applicant

16. The secondary applicant is a member of the family unit of the primary applicant and who has made a combined application with the primary applicant. As the primary applicant has been unsuccessful, the application by the secondary applicant must also fail.

    DECISION

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

    Alan McMurran
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.