TIAN (Migration)

[2018] AATA 4103

TIAN (Migration) [2018] AATA 4103 (27 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ruihong TIAN
Mr Hong SUN
Ms Xiangning SUN
Ms Xiangying SUN

CASE NUMBER:  1621894

HOME AFFAIRS REFERENCE(S):           BCC2016/2142489

MEMBER:Katie Malyon

DATE:27 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 27 August 2018 at 2:41 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination – nomination withdrawn – no approved nomination – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360, 363
Migration Regulations 1994 (Cth), r 5.19, Schedule 2 cl 187.223


CASES
Hasran v MIAC [2010] FCAFC 40
Singh v MIBP [2017] FCAFC 105

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 Immigration and Border Protection on 15 December 2016 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 23 June 2016.  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 3 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, Ms Ruihong Tian, is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Sales and Marketing Manager.   This stream is designed for Subclass 457 visa holders who have worked for their employer for the past 2 years and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas on the basis Ms Tian did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination lodged by her sponsor, Security International Services Pty Ltd (the Company), was refused by the Department and therefore Ms Tian was not the subject of an approved nomination as required by cl.186.223(2) of Schedule 2 to the Regulations. The provisions of cl.186.223 are set out in the Attachment to this decision.

6. By way of background, the Company separately sought review of the Department’s refusal of its nomination application in related matter 1620525.  However, following the appointment of liquidators on 23 May 2018, the Company advised the Tribunal on 7 August 2018 that it had withdrawn its application for review in matter 1620525.

7. Accordingly, on 9 August 2018, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on or respond to information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse their Subclass 186 visa application. The Tribunal informed the applicants it had been advised the Company had withdrawn its application for review of the delegate’s decision to refuse its nomination in respect of Ms Tian and, in circumstances, there is no approved nomination by the Company in relation to her. As a result, the position to which her Subclass 186 visa application relates could not meet criteria in cl.186.223 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105 this is a ‘once off’ process. The Tribunal noted that, in Singh’s case, the Court observed even a new nomination in respect of the same position made by the same employer could not be relied upon because the new nomination would not be the one in relation to which Ms Tian had made the declaration that she was required to make as part of her Subclass 186 visa application. 

8. The Tribunal’s letter to the applicants was sent to the representative who lodged their review application with the Tribunal.  The applicants were requested to provide any comments or response to the information in the Tribunal’s letter on or before 23 August 2018.  No response was received.

9. As the applicants have not provided any response to the Tribunal’s s.359A letter, s.359C of the Act applies and, pursuant to s.360(3) of the Act, they are not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

11. Clause 186.223 requires that, for applicants in the Temporary Residence Transition stream, the position to which their application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination).  For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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 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 6 months after the nomination of the position was approved.

13. On 7 August 2018, the Company informed the Tribunal that it withdrew its nomination application in respect of Ms Tian. The Tribunal wrote to the applicants on 9 August 2018 with details of this information but they have failed to provide any response to, or comment on, the information. As the nomination application for the position to which Ms Tian’s Subclass 186 visa application relates has not been approved it follows that, as primary applicant, Ms Tian does is not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations.

14. Ms Tian 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.

15. There is no evidence before the Tribunal to indicate that any of the secondary applicants - that is, members of Ms Tian’s family unit - meet the primary requirements for grant of the visa. 

    DECISION

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

    Katie Malyon

    
    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.
    
    

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