Xie (Migration)

[2020] AATA 2432

Xie (Migration) [2020] AATA 2432 (30 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Linghao Xie
Mr Hongwei Chen
Mr Nuo Chen

CASE NUMBER:  1726596

HOME AFFAIRS REFERENCE(S):          BCC2016/2990507

MEMBER:De-Anne Kelly

DATE:30 March 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 30 March 2020 at 2:35pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – position of Corporate General Manager – no approved nomination – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.233, 186.311; rr 1.13, 5.19

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 13 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 8 September 2016. 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 Corporate General Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations because the employer nomination by Twinkle Grace Pty Ltd was refused on the 21 September 2017 being the nomination referred to in cl.186.233(1).

6. The applicant appeared before the Tribunal on 24 January 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant Mrs Linghao Xie was the representative of the employer Twinkle Grace Pty Ltd since she was the director of the company and she was also the visa applicant being the person nominated by the employer to fill the position. The applicant did not request an adjournment during the hearing.

7. The registered migration agent of the employer and the registered migration agent of the visa applicant represented their respective clients. The representatives attended the Tribunal hearing. Mr Philip Duncan MARN: 0427769 of AMVL Migrations represented the employer and Mrs Li Qin MARN: 1278075 of AMS Brisbane Pty Ltd represented the visa applicant.

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 applicant meets cl.186.233(3) of the Regulations which provides as follows;

   (3)      The Minister has approved the nomination.

   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.

    After the delegate of the Minister refused the employer nomination, the nominator lodged an application with the Tribunal to review the decision.

    Allegation

12. There was an allegation relating to the employer nomination that appeared in the Department of Immigration and Border Protection file. It was not listed under a s.375A or s.376 certificate. The allegation was made in October 2016 and was from an anonymous source alleging that the company may have financial difficulties in paying their creditors. The Tribunal considered it fair and just to bring this allegation to the applicant’s attention in the hearing but advised that since it was made some years ago and was from an anonymous source it was given no weight by the Tribunal. The employer was invited to respond to this allegation in the hearing or to submit a written response however no such response was made. Nonetheless, the allegation was given no weight by the Tribunal.

13. The Tribunal affirmed the decision on 11 March 2020 to refuse the nomination on the basis the nominator had failed to satisfy r.5.19(4) of the Regulations.

14. On the 13 March 2020, the Tribunal emailed the applicant under s.359A of the Migration Act 1958 advising that the decision to refuse the employer nomination was affirmed on the 11 March 2020. The Tribunal advised that the information was relevant to the review because Mrs Linghao Xie was the nominee named in the nomination, and it was the nomination used in support of the visa application, for the purposes of meeting cl.186.233(1) of Schedule 2 of the Migration Regulations 1994.

15. The Tribunal advised that if it relied on this information in making a decision, as the nomination is not approved, we may find that you are unable to satisfy cl.186.233(3) and affirm the decision under review. The applicants were invited to give comments on or respond to the above information in writing by the 27 March 2020 or they could request an extension of time but such a request would need to be made before 27 March 2020.

16. To date, the applicants have not requested an extension of time and have submitted no comments or response to the information that there is no approved employer nomination to satisfy cl.186.233(3).

17. Since the Tribunal has affirmed the employer nomination refusal there is no approved nomination to satisfy c.l186.233(3) and the visa applicant does not meet cl.186.233(3).

18. Therefore, cl.186.233 is not met.

19. 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.

20. Mr Hongwei Chen and Mr Nuo Chen were secondary applicants on the application for an Employer Nomination (Permanent) (Class EN) subclass 186 visa and sought to satisfy cl.186.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.186.311. This clause provides as below. The secondary applicant lodged an application with the Tribunal to review the decision to refuse the Visa application.

    186.311
    The applicant:
    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

21. The secondary applicants made a combined application with the primary applicant and applied as the spouse and child and therefore as members of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, an Employer Nomination (Permanent) (Class EN) subclass 186 visa. Therefore, the primary applicant is not a person who holds a subclass 186 visa. The secondary applicants are members of the family unit of the primary applicant, who does not hold a subclass 186 visa. The secondary applicants therefore do not satisfy cl.186.311.

22. The secondary applicants do not meet cl.186.311 and the Tribunal affirms the decision not to grant Mr Hongwei Chen and Mr Nuo Chen a subclass 186 visa.

    DECISION

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

    De-Anne Kelly
    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.