XUE (Migration)

[2019] AATA 6242

XUE (Migration) [2019] AATA 6242 (21 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms LAN XUE
Mr TIANJUN CHENG
Mr JUNJIE CHENG

CASE NUMBER:  1919031

HOME AFFAIRS REFERENCE(S):          BCC2017/1539233

MEMBER:Karen McNamara

DATE:21 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 21 October 2019 at 9:43am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Marketing Specialist1 – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; r 1.13

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 1 July 2019 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 28 April 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 Lan Xue (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Marketing Specialist (ANZSCO 225113).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination of a position in relation to the applicant had not been approved.

6. The applicants lodged a review application with the Tribunal on 15 July 2019 and provided the Tribunal with a copy of the delegate’s decision to refuse the visas.

7. The Tribunal wrote to the applicants on 3 September 2019, advising that information before the Tribunal suggested that the applicant’s visa application was not subject to an approved nomination.

8. The applicants were told that this information is relevant because it suggest under cl.186.223(2) the Tribunal may not be satisfied that the applicant is subject to a nomination that has been approved by the Minister. The applicants were invited to give comments and/or respond to this information by 17 September 2019.

9. On the 16 September 2019 the applicant provided to the Tribunal a statement regarding her application dated 10 September 2019, a contract of employment between the applicant and Round Forest Pty Ltd dated 10 August 2019 and an employment verification letter from Round Forest Pty Ltd dated 6 September 2019.

10. On 18 September 2019 the Tribunal wrote to the applicant (dispatched by email to the authorised recipient) advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 8 October 2019.

11. On 19 September 2019, the Tribunal received a request from the applicant’s representative seeking a postponement of the hearing. The Tribunal granted the postponement and the hearing was rescheduled to 14 October 2019.

12. Mrs Xue appeared before the Tribunal on 14 October 2019 on behalf of the applicants, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant meets the requirements of cl.186.223.

    Nomination of a position

16. 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.

17. In addition, this criterion also requires that:

    ·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.

18. The Tribunal told the applicant that in order to meet cl.186.223, the first named applicant must be subject of an approved nomination.

19. The Tribunal told the applicant that there was no evidence before it, to suggest neither that her visa application is subject to an approved nomination nor that the nominator (Premium Travel Solutions Pty Ltd) lodged a review application with the Tribunal.  

20. The Tribunal told the applicant, that If the Tribunal relies on this information it may not be satisfied under cl.186.223(2) that the application is subject to a nomination that has been approved by the Minister. The Tribunal may therefore find that the applicant does not meet the requirements for approval of the visa application and the decision under review may be affirmed. The applicant was invited to comment on or respond to this information.

21. The applicant told the Tribunal that she respects the laws and regulations of Australia and accepts the reason why the delegate refused her visa application. The applicant claims she has made a contribution to the tourist industry for ten years and has accumulated experience in this field in Australia and China. The applicant’ son is studying in Australia and it would not be good for him if he returns to China. The applicant told the Tribunal that she has looked for a potential employer and has found one that is prepared to sponsor her. The applicant asked the Tribunal to consider her application on compassionate grounds and allow her a couple of months to make a new application with a new employer.

22. The Tribunal notes that the applicant’s son is fifteen years old and is in year nine and is not at a stage in his studies such as the Higher School Certificate. Apart from advising the Tribunal that her son is studying the applicant did not present any compelling evidence to support her request that the Tribunal take into consideration compassionate circumstances. The Tribunal advised the applicant that it had no discretion to waive the requirements of cl.186.223 and must apply the law.

23. At the hearing the applicant’s representative sought additional time to provide a submission on behalf of the applicant as her colleague who had conduct of this matter was delayed overseas. The Tribunal provided the applicant until 16 October 2019 to provide further submissions but again stressed to the applicant and representative that in order to meet cl.186.223, the first named applicant must be subject of an approved nomination.

24. On 16 October 2019, the Tribunal received a reference from Revival Church (undated) outlining the involvement in the church of Jerry Cheng. There is no information contained in this submission to support that the applicant is subject to an approved nomination. A check of Tribunal records show that the applicant has not provided further submissions as of the time of this decision.

25. The Tribunal acknowledges the position in which the applicant finds herself and has sympathy for her situation; however, the Tribunal must apply the legislation as it stands. As explained to the applicant throughout the hearing, the Tribunal must apply the relevant law.

26. In regard to the applicant’s submission that she has found another employer who is prepared to sponsor her, the Tribunal advised the applicant at the hearing that the legislation as applicable in this case, requires that the position to which the application relates, must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

27. There is no evidence before the Tribunal to support that the first named applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn. Therefore, the Tribunal finds that the nomination application associated with the position was not approved and as such the applicant does not meet cl.186.223(2) of Schedule 2 to the Regulations.

28. Therefore, as the first named applicant does not meet essential criteria for the grant of a subclass 186 visa, cl.186.223 is not met.

29. There is no evidence before the Tribunal to indicate that the second and third named applicants meet the primary requirements for grant of the visa.

30. As the first named applicant is found not to have met the prescribed criteria for a subclass 186 visa, the secondary applicants Mr Tianjun Cheng and Mr Junjie Cheng as a member of Ms Xue’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named and third named applicants do not satisfy cl.186.311.

31. The applicants have 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

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

    Karen McNamara
    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.