Xu (Migration)

[2021] AATA 2460

Xu (Migration) [2021] AATA 2460 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Xiaonan Xu
Miss Yiqiao Xu
Mr Xing Wang

CASE NUMBER:  1826718

HOME AFFAIRS REFERENCE(S):          BCC2017/2128973

MEMBER:Stavros Georgiadis

DATE:9 June 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 09 June 2021 at 6:10pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – subject of approved position nomination – refusal of related nomination application affirmed on review – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4)(h)(i), Schedule 2, cl 186.233(3)

CASE
Varsi v Minister for Immigration [2018] FCCA 1280

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 6 September 2018 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 16 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 (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 Direct Entry stream, to work in the nominated position of Managing Director (ANZSCO 111111).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.233 of Schedule 2 to the Regulations because there was no approved nomination of the position: cl.186.233(3).

6. The primary applicant, Mr Xiaonan Xu, appeared before the Tribunal on 9 June 2021 to give evidence and present arguments by TEAMS video conference from China. The primary applicant (also known as Xander Xu) is the Managing Director of the nominating employer, Liaoning Zhongxin Group (AU) Pty Ltd in the related review application in AAT casefile 1824378. The related matters were heard together in a combined hearing.

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

9. The issue in the present case is whether the primary applicant meets the criteria for the grant of a Subclass 186 visas (in respect of all applicants) which are set out in Schedule 2 to the Migration Regulations 1994.

   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 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 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. From the application on the Department file, the Tribunal notes the required declaration in relation to the position nominated by the employer sponsor. The Tribunal is satisfied on the documentary and oral evidence before it that the position to which the application relates is the position nominated by the nominator employer, Liaoning Zhongxin Group (AU) Pty Ltd, in an application for approval that seeks to meet the requirements of sub-paragraph 5.19(4)(h)(i), and is in relation to which the applicant has been identified in the nomination as the relevant visa holder for the position under cl.186.233(1).   

13. On 9 June 2021 the Tribunal made a decision to affirm the decision under review in respect of the nomination under r.5.19 in the related AAT case-file number1824378.  At the hearing the Tribunal put to the applicant, in accordance with the procedure under s.359AA of the Act, that in circumstances where the nomination is not approved, he would not be able to meet necessary criteria to satisfy cl.186.233 (specifically cl.187.233(3)) for the grant of the visa and that the application would, on that basis, be unsuccessful in respect of all applicants. The Tribunal invited the applicant to comment on, or respond to, information that in circumstances where a decision has been made by the Tribunal to refuse the nomination, this would be the reason or part of the reason, for affirming the decision under review to refuse the Subclass 186 visas.  The Tribunal also advised the applicant that he could seek additional time to comment on, or respond to, the information and that the Tribunal would consider adjourning the review if it considered the applicant reasonably needed additional time to comment on, or respond to, the information.  

14. The applicant did not require additional time to comment or respond. The applicant conveyed to the Tribunal, when asked, that he understands and accepts that in circumstances where there is no nomination approved, his visa application and those of the secondary visa applicants (as members of his same family unit) could not be successful as approval of the nomination is one of the requirements for the grant of the Subclass 186 visas.

15. The Tribunal has not returned the matter for any further evidence or submissions as in these circumstances, and in view of authority in the case of VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280 (paragraphs 51-58) it would be ‘futile’ as ‘no useful result could ensue’ because a Subclass 186 visa cannot be granted in the absence of an approved nomination in respect of an applicant. The Tribunal is satisfied that there is no practical injustice in not returning the matter to the Tribunal following the decision to refuse the nomination and accepts the submission made on behalf of the applicant at the hearing consistent with this.

16. Having considered the available evidence before it discussed, the Tribunal is satisfied that the position of Managing Director (ANZSCO 111111) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.186.233(3). The Tribunal finds that the nomination of the position to which the application relates is not approved. 

17. As cl.186.233(3) is not satisfied, cl.186.233 is therefore, not met.

18. 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 in respect of all applicants, including the secondary applicants (spouse and daughter) as claimed members of the same family unit as the primary applicant.

    DECISION

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

    Stavros Georgiadis
    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.