Wu (Migration)

[2020] AATA 304

Wu (Migration) [2020] AATA 304 (11 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jingmiao Wu
Mr Hongyang Xiao
Miss Yifan Xiao

CASE NUMBER:  1726267

HOME AFFAIRS REFERENCE(S):          BCC2017/1663400

MEMBER:Karen McNamara

DATE:11 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.233 of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in this matter in relation to the second named applicant.

Statement made on 11 February 2020 at 2:08pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Newspaper or Periodical Editor – subject of an approved nomination – nomination now approved by the Tribunal – jurisdiction of the Tribunal – physical presence in the migration zone – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

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 October 2017 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 9 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 Ms Jingmiao Wu (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Newspaper or Periodical Editor (ANZSCO 212412). 

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination to which the position relates was not approved.

6. Ms Jingmiao (Jessie) Wu appeared before the Tribunal on behalf of the applicants on 14 January 2020, to give evidence and present arguments. The Tribunal also received oral evidence from the nominator Mr Jianming (David) Niu and Company Director Ms Yang (Jenny) Hong. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicants were represented in relation to the review by their registered migration agent. The representative attended the hearing.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of cl.186.233.

   Nomination of a position

10. 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.

11. 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.

12. The nominating employer, Pacific Financial News Pty Ltd applied to the Department for approval of a nomination in relation to the position of Newspaper or Periodical Editor (ANZSCO 212412). That nomination was refused by the Department and consequently the applicants’ visa applications were refused.

13. Pacific Financial News Pty Ltd applied for a review of the decision not to approve the nomination (AAT Case No. 1724526). On 11 February 2020, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19(4) of the Regulations.

14. Based on evidence before it, the Tribunal is satisfied that;

    ·The person who will employ the applicant in the nominated position, (that is Pacific Financial News Pty Ltd) is the person who made the nomination.

    ·Pacific Financial News Pty Ltd’s nomination for the position of Newspaper or Periodical Editor (ANZSCO 212412) with Pacific Financial News Pty Ltd has been approved by the Tribunal and has not been subsequently withdrawn;

    ·Having regard to the information on the related Tribunal and Department files in respect of the nomination application, there is no evidence before the Tribunal to suggest that there is adverse information known to Immigration about the nominator or a person associated with the nominator.

    ·The nominator advised at Hearing the position is still available to Ms Wu; and

    ·The visa application was made on 9 May 2017 and was therefore not made more than six months after the nomination of the position was approved.

15. On the basis of the above, the Tribunal finds that the requirements of cl.186.233 are met.

16. Mr Hongyang Xiao and Miss Yifan Xiao applied on the basis of being a member of the family unit of the first named applicant, Ms Jingmiao Wu.

    Jurisdiction in relation to the second named applicant

17. Section 347(2) of the Act, specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act.  In the case of a decision described in s.338(2) of the Act, an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and s.347(3) of the Act.  The term migration zone is defined in s.5(1) of the Act and generally means the Australian States and Territories.

18. Department records indicate the second named applicant Mr Hongyang Xiao was off shore at the time of the primary decision on 25 October 2017 and at the time the application for review was lodged on 26 October 2017. In the circumstances, the Tribunal finds that Mr Hongyang Xiao was not in the migration zone at the relevant time. 

19. As such the application for review made by Mr Hongyang Xiao does not meet the requirements of s.347 of the Act and accordingly, the Tribunal does not have jurisdiction in relation to him.

20. Miss Yifan Xiao’s application will be determined by reference to the outcome of Ms Jingmiao Wu’s application on remittal to the Department for reconsideration.

21. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

22. The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.233 of Schedule 2 to the Regulations.

23. The Tribunal does not have jurisdiction in this matter in relation to the second named applicant.

Karen McNamara
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.