Wong (Migration)

Wong (Migration) [2020] AATA 4474 (15 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Yan Lam Wong
Mr Liyu Huang
Mr Winston Yat Lok Huang
CASE NUMBER:  1921994
HOME AFFAIRS REFERENCE(S):          BCC2017/2975920
MEMBER:Alan McMurran
DATE:15 October 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 15 October 2020 at 1:07pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Marketing Specialist – subject of an approved nomination – serious, ongoing and irreversible harm and continuing hardship – uncertainty and political instability in Hong Kong – physical danger – connections to Australia over a lengthy period – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 8 August 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 6 August 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 18 August 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
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 Marketing Specialist (ANZSCO 225113).
The delegate refused to grant the visas because the primary applicant did not meet cl.186.223 of Schedule 2 to the Regulations, because the applicant was not the subject of an approved nomination. The secondary applicants are members of the family unit of the primary review applicant and their applications are dependent upon the outcome of the primary review applicant.
The applicants appeared by telephone before the Tribunal on 25 September 2020, in a combined hearing with the review of the nomination application[1], to give evidence and present arguments. The Tribunal received oral evidence from the applicant and from Mrs Zhou, as the owner of the nominating business, and from Mr Hobbs, a former director of the nominator who also works in the business. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
[1] T case number 1917767 (Foshan Australia Pty Ltd)
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirement of cl.186.223, a copy of which is attached to this decision.
The Tribunal has available for consideration its file, and the Department’s electronic files, for both the applicant nominee and the sponsor.
The Tribunal wrote to the applicant on 29 September 2020 under s.359A of the Act, advising that on 28 September 2020, the Tribunal had decided to affirm the nomination decision under review. The applicant was invited to respond by 13 October 2020, and the Tribunal received her response on 12 October 2020.
The applicant’s response sets out in full as follows:
“Dear Officer,
This is a response letter to Case 1921994. I am very disappointed and dissatisfied with AAT’s decision.
I have been with Foshan Ltd Pty for more than 6 years and this is my first job since graduation. During these 6 years, I have been a diligent and lawful taxpayer to fulfill my role as part of this loving Country and community. As this is a professional equipment organisation with numerous co-operation projects with the Ministry of Defence, a lot of employees have been with the company for many years. I am fully committed and heavily invested in the company as I have made a lot of efforts with assisting the development of this company. I have done a lot of marketing work for the company and developed markets for them in multiple professional fields. I believe that I am very important to the company.
The company has trained every year whether it was during the nomination or before I joined the company, which we had already explained in detail with the tribunal member during that time. The company has also written a reply letter to elaborate on their training course regarding the question raised by the member at the time. I believe that the information and evidence we submitted are true, reasonable, and in line with the requirements; so we are very confused by the query.
I came to Australia when I was just 15 years old; I have spent most of my time here and have met many different people through my education and work during the past 16 years. My husband and I met in Australia and happily married for 8 years, we now have a 20 months son with one more to come. My husband is a contractor for a cleaning company and during this pandemic he has been working on the front line cleaning many primary and secondary schools. Regardless of his own safety, he wanted to contribute to the health and safety of school children during this tough situation.
I have not lived in Hong Kong for the past 16 years; it is now a very strange place for me. My husband and child have never lived in Hong Kong before and we’ll have to settle to a new environment again. The community situation in Hong Kong is very chaotic currently with China’s control of Hong Kong it will deprive us of democracy and freedom. There is a large amount of police and civilian conflicts with protest activities every day. I once saw a tear gas grenade flying over my head whilst carrying my child in my arms. I still remember the fear and the horrifying situation that it was during the time and having to worry about our family’s safety every time we go out. I cannot imagine how our family and live in such an environment. The decision to refuse to grant Employer Nomination (Permanent) visas will undoubtedly push our family back to Hong Kong which is a very unstable and turbulent place.
I believe that we have integrated into our community and our family can continue to contribute the society and not become a burden. We go to church and work every day; I value Australia as my home.
I kindly ask the AAT member can reconsider my case. I believe our application is reasonable and compliant.
Yours sincerely,
Yan Lam WONG”
The Tribunal does not comment in reply to the applicant’s statements about the training criteria, which were not met. That matter was dealt with in the nomination review decision,[2] which found the nominator had not met its training obligations during the relevant SBS period, and in respect of which the Tribunal’s jurisdiction is complete.
[2] Ibid pars 29-52
The Tribunal cannot review further the decision in respect of the nomination refusal at the request of the nominee, which only the courts can review on application by the nominator/sponsor. As explained to the applicant at the hearing, which she appeared to understand, the visa application follows the decision made in respect of the nomination. Without an approved nomination, the visa application cannot succeed.
The Tribunal has some empathy for visa applicants who are in the position of having worked conscientiously for a sponsor and for several years, but who fail because the sponsor’s application has failed, and through no fault of the nominee. The Tribunal has no discretion in the matter.
The Tribunal has proceeded to deal with the applicant nominee’s case on the information before it.
Nomination of a position
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.
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 six months after the nomination of the position was approved.
On 28 September 2020, the Tribunal affirmed the decision not to approve the nomination by the sponsor, Foshan Australia Pty Ltd. The Tribunal finds that there is no approved nomination in respect of the applicant[3].
[3] Cl. 186.223(2)
Therefore, the Tribunal finds that cl.186.223 is not met.
Secondary applicants
The secondary applicants are the husband and son of the primary applicant and members of the primary applicant’s family unit in accordance with cl.186.311.
As the primary applicant’s application has failed, the applications by the secondary applicants must also fail, as they are not members of the family unit of an applicant who holds the required visa.
That disposes of the applications for Tribunal review. The Tribunal however must deal with all the written submissions[4] which includes the applicant’s request to have regard to specified compassionate circumstances.
[4] 12 October 2020
The Tribunal has dealt with those submissions as follows.
Ministerial recommendation
The applicant in her response to the Tribunal, makes the following submission [extracted in part] [5]:
“I came to Australia when I was just 15 years old; I have spent most of my time here and have met many different people through my education and work during the past 16 years. My husband and I met in Australia and happily married for 8 years; we now have a 20 months son with one more to come. My husband is a contractor for a cleaning company and during this pandemic he has been working on the front line cleaning many primary and secondary schools. Regardless of his own safety, he wanted to contribute to the health and safety of school children during this tough situation.
I have not lived in Hong Kong for the past 16 years; it is now a very strange place for me. My husband and child have never lived in Hong Kong before and we’ll have to settle to a new environment again. The community situation in Hong Kong is very chaotic currently with China’s control of Hong Kong it will deprive us of democracy and freedom. There is a large amount of police and civilian conflicts with protest activities every day. I once saw a tear gas grenade flying over my head whilst carrying my child in my arms. I still remember the fear and the horrifying situation that it was during the time and having to worry about our family’s safety every time we go out. I cannot imagine how our family and live in such an environment. The decision to refuse to grant Employer Nomination (Permanent) visas will undoubtedly push our family back to Hong Kong which is a very unstable and turbulent place.
I believe that we have integrated into our community and our family can continue to contribute the society and not become a burden. We go to church and work every day; I value Australia as my home.
I kindly ask the AAT member can reconsider my case.”
[5] See full submissions at par 12
The Tribunal understands that the applicant did not make a formal request to the Tribunal to refer her matter to the Minister. The Tribunal is conscious however of its obligation under the Act[6] to conduct itself in a manner which is consistently fair, just, economical, informal and quick.
[6] s.2A(b)
Consideration of what might be fair and just in the circumstances of this application arises, where the submissions relied upon by the applicant, perhaps unwittingly, go to guidelines as set out by the Minster at >
The Tribunal notes that the available information on the Department’s publicly available website provides details of what is required in support, and application forms, including suggested documents that might be relevant for consideration.
The guideline includes examples of what are referred to as “unique or exceptional circumstances”, including strong and compassionate circumstances that if not recognised may result in “serious, ongoing and irreversible harm and continuing hardship”.
The Tribunal has not received a direct request. The Tribunal, however, may of its own volition refer a matter which it considers may meet the Minister’s guidelines. Elements of the applicant’s circumstances which warrant a referral, include as submitted by her:
·    The potential difficulty for her family in returning to Hong Kong due to the uncertainty and political instability in that place;
·    Physical danger due to chaos and rioting;
·    Her connections to Australia over a lengthy period including marriage and parenting;
·    Potential irreversible hardship.
On the available information, the applicant does not meet any of the criteria which might otherwise make such a request for referral “inappropriate to consider”.
The Tribunal cannot comment directly on these matters without more information. Having heard from the applicant directly at the hearing and taking into consideration the submission following, the Tribunal proposes it is both just and fair that the matter be referred nonetheless for consideration, so that the Minister might take into account what has already been put. Any other information the applicant provides, either in response to the Department directly following a formal request, or on the applicant’s own initiative following the guidance from the Department’s publicly available information referred to above and herein are matters for the applicant herself.
What follows from that is a matter for the Minister’s independent consideration, noting that such a decision is not a “migration decision”.[7]
[7] See DUE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1187 per O’Bryan J
Summary
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.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Alan McMurran
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.

[2020] AATA 4474

15 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal