XU (Migration)

[2018] AATA 3906

XU (Migration) [2018] AATA 3906 (19 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr XUNJIN XU
Ms LIQIN WANG
Master SHICI XU
Master SHIWEN XU
Master SHIGE XU

CASE NUMBER:  1725507

DIBP REFERENCE(S):  BCC2017/2163988

MEMBER:Mr S Norman

DATE:19 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 September 2018 at 9:25am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) – Subclass 186 (Employer Nomination Scheme) – direct entry stream – nominated position of Sales and Marketing Manager – Tribunal affirmed Department’s decision not to approve nomination by employer – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19 Schedule 2 cls 186.233, 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 2 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 19 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 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 Sales and Marketing Manager (ANZSCO 131112). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

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 related nominated approval application had been refused.

6. The applicants (represented appeared before the Tribunal on 13 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   The request for further time to lodge information:

8. At hearing, the applicant’s solicitor (not a migration agent) said the applicant may not have been issued a hearing invitation letter by the Tribunal. The solicitor advised the Tribunal that the migration agent authorised to act for the applicant (who was previously engaged by their firm), had left the firm. When contacted, that migration agent had advised the solicitor that she had not received a Tribunal hearing invitation letter. However, the evidence before the Tribunal included that the hearing invitation letter was sent to the applicant’s migration agent (dispatched by email on 24 July 2018). The applicant said the migration agent had not advised him about the Tribunal hearing. However, he did concede that he received two SMS hearing reminder texts from the Tribunal (issued 06/08/2018 & 10/08/2018); and that is why he attended the Tribunal hearing on 13 August 2018 (with his solicitor).  

9. The applicant’s solicitor requested the Tribunal provide more time to lodge information. The reasons for this were that the applicant was not advised about the Tribunal hearing invitation letter (though the Tribunal is now satisfied that was properly issued). The second reason was the applicant did receive the SMS hearing reminder texts, but due to his lack of English language proficiency, he may not have understood the importance of same and may not have been able to properly prepare for the 13 August 2018 hearing.

10. After considering same, the Tribunal declined to formally provide further time for the applicant to lodge evidence and submissions in support of the review application. However, the Tribunal advised it would not finalise its decision until COB (5pm) Thursday 30 August 2018. The Tribunal also advised it would consider any information lodged prior to its decision being made.

11. The Tribunal also suggested to the applicant and his solicitor, that the applicant formerly advise the Tribunal of a new address for service of documents issued by the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether cl.186.233 of Schedule 2 to the Regulations has been met.

    Nomination of a position

13. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii). 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.

14. The Tribunal notes that further submissions dated 29 August 2018,[1] were lodged with the Tribunal after the hearing. Amongst other things, these sought to establish (words to the effect) the genuine nature of the position; the credentials of the principal visa applicant; references; evidence of business dealings; financial information (principally relating to businesses in China); and ‘site visit photos’. The Tribunal has had regard to same prior to finalizing this decision. 

    [1] Tribunal – from folio 79.

15. Clause 186.233 requires inter alia that the position to which the application relates be the subject of an application for approval (or an 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.

16. On 19 June 2017, the nominator (Phoenix Property Investment Group P/L; trading as “LW Phoenix”), lodged a nomination application. The nomination type was listed as “Direct Entry” and the position was for the occupation of “Sales and Marketing Manager – ANZSCO 131112”. The proposed salary was $181,480 per annum (the principal visa applicant/nominee was Mr Xunjin Xu (James)). On 9 August 2017, the nomination application was refused by a Department delegate. As the visa applicant had not met cl.186.233(3), the delegate was not satisfied cl.186.233 was met.

17. The delegate then considered the Temporary Residence stream and noted that under cl.186.223(1)(a) the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the nomination did not seek to meet the requirements of r.5.19(3), the delegate was not satisfied the applicant met cl.186.223.

18. The delegate then considered cl.186.311 (member of a family unit). However, as neither the principal visa applicant nor any family member, met the primary criteria for the visa, cl.186.311 was not met.

19. The delegate then refused to grant the Employer Nomination Scheme (subclass 186) visa.

20. At the Tribunal hearing, the principal visa applicant advised that he had spent more than ten years in property development (mainly in China). In the last six years, he had travelled to and from China (he mainly resided in China), engaging in property development and sales of residential and or other properties, in China. He said it was proposed that when working in the nominator’s business, the applicant would be principally focussed on the sales of Australian residential and other property, to the Asian market (and in particular to Chinese). The applicant said he had developed an understanding of for instance, the legal and other issues that must be met by foreign investors (particularly those from China).

21. By s.359A letter dated 4 September 2018 (dispatched by email to the applicant’s authorised recipient), the applicant was advised that subject to their comments or response, the following may be the reason, or a part of the reason, for affirming the decisions under review:

    ·On 3 September 2018, the Tribunal affirmed the Department's decision not to approve the nomination in relation to you made by your nominating employer (Phoenix Property Investment Group Pty Ltd).

    The above information is relevant because cl.187.233(3) requires that the nomination made in relation to you by your nominating employer has been approved. If the Tribunal relies on this information it may find that the nomination in relation to you has not been approved and consequently the decision under review would be affirmed.

    You are invited to give comments on or respond to the above information in writing.
    Your comments or response should be received by 18 September 2018…

22. At the time and date of this decision, no response had been received by the Tribunal. That being said, as the delegate’s decision to refuse the nomination approval has been affirmed by the Tribunal, cl.186.233(3) has not been met. After considering all the evidence, the Tribunal is also not satisfied that cl.186.233 is otherwise met. Therefore, cl.186.233 is not met.

23. Next, 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.

24. Finally, cl.186.311 requires inter alia that an applicant is a member of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of that visa. As neither the principal visa applicant, nor any family member, has satisfied the primary criteria for the grant of the subclass 186 visa, I am not satisfied that cl.186.311 has been met.

    DECISION

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

    Mr S Norman
    Member