YAN (Migration)

[2020] AATA 835

YAN (Migration) [2020] AATA 835 (23 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Qinglin Yan
Mr Fengsheng Lang
Mr Zhe Lang

CASE NUMBER:  1728206

HOME AFFAIRS REFERENCE(S):          BCC2017/1960727

MEMBER:Katie Malyon

DATE:23 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 23 March 2020 at 12:21 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Real Estate Agent – subject of an approved nomination ­­– nomination refused – no response to s 359A letter – not entitled to appear before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
Hasran v MIAC [2010] FCAFC 40
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105

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 6 November 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 2 June 2017.  At the time of application, Class EN contained one subclass only: Subclass 186 (Employer Nomination Scheme).

3. 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.

   Background

4. In this case, the first named applicant – Chinese national Mrs Qinglin Yan - is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Real Estate Agent ANZSCO 612114 and thereby continue her employment with GHK Real Estate Pty Ltd (the Company), the sponsor of her Subclass 457 visa.

5. The delegate refused to grant the visas on the basis Mrs Yan did not meet cl.186.223 of Schedule 2 to the Regulations because the Company’s nomination application had been refused. The Company sought review of the delegate’s decision to refuse its nomination (AAT File 1721276).

6. The Tribunal made a decision on 2 March 2020 to affirm the delegate’s decision not to approve the Company’s nomination in respect of the position of Real Estate Agent for Mrs Yan.

7. On 4 March 2020, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse their Subclass 186 visa application. The Tribunal informed the applicants that it had affirmed the Department’s decision to refuse the nomination application made by the Company in respect of Mrs Yan. As a result, the position to which her Subclass 186 visa application relates cannot meet criteria in cl.186.223 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

8. The Tribunal’s letter to the applicants was sent to the representative who lodged their review application with the Tribunal, Ms Regina Cheung of Summit Legal. The applicants were requested to provide any comments or response to the information in the Tribunal’s s.359A letter on or before 18 March 2020.

9. The applicants have not commented on, or responded to, the Tribunal’s letter within the prescribed period. As they have not provided any response to the Tribunal’s s.359A letter, s.359C of the Act applies and, pursuant to s.360(3) of the Act, the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

10. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

11. Clause 186.223 of Schedule 2 to the Regulations, 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 same one that was the subject of the declaration made by the visa applicant and which is required by para 1114B(3)(d) of Schedule 1 to the Regulations for the purposes of lodging a valid Subclass 186 visa application.

12. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn (emphasis added);

    ·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 of the Regulations), 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.

13. The Company’s nomination application in respect of Mrs Yan was refused by the Department and that decision was affirmed by the Tribunal. Mrs Yan has failed to provide any response to, or comment on, this information as set out in the Tribunal’s s.359A letter of 4 March 2020. Since the nomination application for the position to which Mrs Yan’s Subclass 186 visa application relates has not been approved, it follows that she does not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations. As noted by the Tribunal in its s.359A letter, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process. Therefore, cl.186.223 of Schedule 2 to the Regulations is not met.

14. Mrs Yan has 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 two 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.

15. The applications of the second named applicant Mr Fengsheng Lang (Mrs Yan’s husband) and the third named applicant Mr Zhe Lang (her 11 year old son) are based on their being a member of the family unit of a person who meets the primary criteria.  As Mrs Yan does not meet the primary criteria, neither Mr Fengsheng Lang nor Mr Zhe Lang meet criteria for the grant of the visa.  Accordingly, the Department’s decision to refuse the applications of the second named applicant and the third named applicant must also be affirmed.

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from Schedule 2 to the Migration Regulations 1994

    Part 186

    …
    
    

    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.

    oOOo