Wu (Migration)

[2020] AATA 4623

Wu (Migration) [2020] AATA 4623 (24 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zihua Wu
Ms Xiuhong Li
Master Siliang Wu
Miss Siting Wu

CASE NUMBER:  1724716

HOME AFFAIRS REFERENCE(S):          BCC2017/2285853

MEMBER:Mr S Norman

DATE:24 August 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 24 August 2020 at 11:44am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Agricultural Technician – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 5.19; Schedule 2, cls 186.223, 186.233, 186.242, 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 Immigration and Border Protection on 25 September 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 28 June 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 Temporary Residence Transition stream, to work in the nominated position of Agricultural Technician (ANZSCO: 311111).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations.

6. The applicants appeared before the Tribunal on 28 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from by Mr Eric WONG (representing the associated nominator). The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

7. The applicants were represented in relation to the review by their 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 186.223 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.

10. On 10 August 2017, the nomination application lodged by Green Meer P/L, being the nomination referred to in cl.186.223(1), was refused by a delegate of the Minister. On 21 August 2017, the Department issued a letter to the applicant inviting them to comment about this information within 28 days. On 12 September 2017, the applicant’s migration agent said they ‘hoped it can revive the nominee’s application previously lodged’ (see AAT # 1719964 & 1814315).  

11. Put briefly, the delegate determined that the nomination had been refused, and the applicant had not met cl.186.223(2); or cl.186.223. Next, the delegate considered the application under the Direct Entry Stream. However, under cl.186.233(1)(a), the position to each of visa application relates must have been nominated and approved under r.5.19(4)(h)(i) or r.5.19(2). Since the correlating nomination only sought to meet the requirements of r.5.19(3), the applicant did not meet cl.186.233. Next, the delegate considered the application under the Agreement stream. However, as the correlating position was not nominated by an employer in accordance with a Labour agreement, the applicant did not meet cl.186.242. Next, the delegate considered cl.186.311 (member of the family unit). However, as no person met the primary criteria for the grant of the visa, no person was able to be granted the visa based on their membership of the family unit of a person who had. The delegate then refused to grant the Employer Nomination Scheme (Subclass 186) visa.

12. By s.359A letter of 6 August 2020 (emailed to the authorised recipient), the Tribunal advised the applicant that on 3 August 2019 the Tribunal had affirmed the Department's decision not to approve the nomination in relation to them made by their nominating employer (Green Meer Pty Ltd - AAT # 1719964). The applicant was also advised the above information was relevant because cl.186.223(2) required that the nomination made in relation to them by their nominating employer had been approved. If the Tribunal relied on this information, it may find that the nomination in relation to them had not been approved and consequently the decision under review would be affirmed. The applicants were invited to comment on or respond to the above information in writing by 20 August 2020.

13. By migration agent letter dated and emailed to the Tribunal on 19 August 2020, the applicant acknowledged the visa application ‘must be affirmed’; advised they would seek Ministerial intervention ‘based on [the applicants] long term residence in Australia, skilled employment, economic future benefit to Australia and that this issue was not caused by them but the mistakes made by others’. The agent also said the applicants would ‘like the opportunity to attend a hearing at the Tribunal and provide evidence in person, because they will be requesting the Tribunal refer this case to the Minister’.

14. After considering the above, the Tribunal was not satisfied that a further ‘hearing’ (or interview) was necessary. The Tribunal therefore decided to proceed to make its decision about this case on the information before it. However by post decision letter, the Tribunal invited the applicants to provide further written submissions (with reference to the material Ministerial guidelines on ministerial powers (s351, s417 and s501J)). Be that as it may, the Tribunal also notes the applicants may independently request the Department consider referring the case to the Minister.

15. That being said, based on the evidence before the Tribunal, I am not satisfied that cl.186.223(2); and cl.186.223 is met.

16. 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

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

    Mr S Norman
    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.