Wang (Migration)

[2019] AATA 5474

Wang (Migration) [2019] AATA 5474 (3 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Xingqing Wang
Mrs Yulian Cao
Master Haoyuan Wang
Master Yuhan Wang

CASE NUMBER:  1805347

HOME AFFAIRS REFERENCE(S):          BCC2017/1670797

MEMBER:Mark Bishop

DATE:3 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 December 2019 at 12:15pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – subject of approved nomination of position – employer’s nomination application refused – refusal affirmed on review – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 186.233(3), 186.311

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 28 February 2018 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 10 May 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 (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 Direct Entry stream, to work in the nominated position of General Manager.

5. The applicant appeared before the Tribunal on 14 November 2019 to give evidence and present arguments. The nominator in Case number 1802666 was Australian Perfect Trading Pty Ltd. The nomination was lodged in favour of Mr Xingqing WANG as nominee. In this review application the applicant is Mr Xingqing WANG. The nominee is a Director of the nominator. The nominee is to be employed in the position of General Manager for Australian Perfect Trading Pty Ltd. The nominee in Case number 1802666 gave evidence in the review hearing. Hence the nominee in case number 1802666 and the applicant in the current review application are the same person.

6. The review application was conducted in the English and Mandarin languages.

7. The applicant was represented in relation to the review by his registered migration agent.

8. 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

9. 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.

10. 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 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 six months after the nomination of the position was approved.

11. On 15 November 2019 the Tribunal in case number 1802666 affirmed the decision under review to refuse the nomination.

12. On 15 November 2019 the Tribunal provided adverse information to the review application. That adverse information was “On 15 November 2019 in an application for review by Australia Perfect Trading Pty Ltd the Tribunal affirmed the decision to refuse the nomination” The Tribunal provided particulars of that information and requested a written comment or response by 2 December 2019.

13. On 2 December 2019 the applicant provided a written response to the Tribunal. He advised as follows:

    ·He understood the review application for ENS nomination was affirmed by the Tribunal as the member was not satisfied there was a genuine need for a full time General Manager for the business. The business continues to operate. It has solid income.

    ·It is not easy to open a new business in a new country. He is proud of his achievements in Australia. He listed those achievements. The company paid income tax in Australia.

    ·A new window business will generate employment and income.

14. The Tribunal has considered the above information.

15. The Tribunal did not approve the nomination in respect of the nominator under r.5.19 of the Regulations made by the employer Australian Perfect Trading Pty Ltd in Case number 1802666 . Hence the applicant in this review application does not meet cl.186.233 (3) of Schedule 2 to the Regulations.

16. Therefore, cl.186.233 is not met.

    Secondary Applicants

17. The secondary applicants in this review application are members of the family unit of the review applicant in this review application.

18. As the secondary applicants are not members of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of a visa, cl.186.311 is not satisfied.

19. As cl.186.311 is not satisfied the Tribunal finds the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa ae not satisfied. Therefore the Tribunal refuses the application by the secondary applicants for an Employer Nomination Scheme (sub class 186) visa.

    CONCLUDING PARAGRAPH (ALL ISSUES)

20. 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.

    DECISION

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

    Mark Bishop
    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.