Wei (Migration)

[2021] AATA 2257

Wei (Migration) [2021] AATA 2257 (17 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Huimei Wei
Master Xingyu Lin

CASE NUMBER:  1910927

HOME AFFAIRS REFERENCE(S):          BCC2018/4569767

MEMBER:Sean Baker

DATE:17 June 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 17 June 2021 at 12:38PM

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Café or Restaurant Manager – no approved nomination – request for Ministerial Intervention – compensation for car accident – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 351, 360
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 18 April 2019 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 18 October 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 (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 Café or Restaurant Manager (ANZSCO 141111) for Shandong Brothers Pty Ltd (the nominator).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the nomination to which the position related was not approved by the Minister.

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

7. On 16 June 2021 the applicants consented to the Tribunal deciding the review without the applicants appearing before it. The Tribunal has therefore proceeded to make a decision without inviting the applicants to a hearing, pursuant to s.360(2)(b) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the nomination to which the application relates has been approved

   Nomination of a position

10. 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.

11. 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.

12. In this case the nomination was refused by the Department on 15 May 2018 (File number BCC2017/2099115). The nominator sought review and on 1 June 2021 I affirmed the decision to refuse the nomination (file number 1815670).

13. Therefore, the nomination has been refused and has not been approved by the Minister. The application therefore cannot satisfy cl.186.223(2)

14. Therefore, cl 186.223 is not met.

15. 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.

16. As the primary applicant has not met the primary criteria, the secondary applicant, not being able to satisfy the primary criteria, the secondary applicant’s application must also be affirmed.

    Request for Ministerial Intervention

17. The applicants have indicated that they wish to seek Ministerial Intervention.

18. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

19. I have before me information which indicates that the second named applicant was born in Australia, that her employment was interrupted by a car accident for which she was paid compensation, and that she continues to be employed by the nominator in some capacity. I have been informed that the nominator is preparing to nominate the applicant as a restaurant manager to work in their new restaurant under the Temporary Skill Shortage Visa Subclass 482.

20. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter on the basis that the circumstances of which I am aware do not bring the applicant’s case within the ministerial guidelines. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

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

    Sean Baker
    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.