Yau (Migration)

[2020] AATA 3864

Yau (Migration) [2020] AATA 3864 (16 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Siu Fung Yau
Ms Yu Lam
Mr Yu Yik Yau
Miss Yu Hei Yau

CASE NUMBER:  1828075

HOME AFFAIRS REFERENCE(S):          BCC2017/1887364

MEMBER:Ian Berry

DATE:16 July 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 16 July 2020 at 8:56am

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, ss 65, 359, 363
Migration Regulations 1994, r 1.13; Schedule 2, cls 186.233, 186.311

CASES

Hasran v MIAC [2010] FCAFC 40     

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 24 September 2018 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 27 May 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Corporate General Manager ANZSCO  

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 Schedule 2 to the Regulations because the nominee did not have an approved nomination which has not been withdrawn.

6. The applicants appeared before the Tribunal on 26 March 2020 to give evidence and present arguments. The Tribunal only received oral evidence from the applicant: The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicants were represented in relation to the review by their registered migration agent Ms Bin Lu (0962107). The representative attended the Tribunal hearing.

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 is the subject of an approved nomination which has not been withdrawn.

   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.

12. The applicant’s employer’s nomination was refused by the delegate in the first instance and subsequently affirmed by the Tribunal on 24 June 2020

13. On 29 June 2020, the Tribunal wrote to the applicants concerning the Tribunal refusing the applicant’s nomination having been refused. The Tribunal’s letter invited the applicants to make comment or respond in writing to this information, and should they wish to respond or comment they must do so by 13 July 2020. The relevance of this information is that if the Tribunal relies on this information it may be a reason or part of a reason to affirm the delegates decision.

14. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response was not provided in writing by 13 July 2020, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s comments and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence, present arguments and the Tribunal proceeding to make a decision.

15. The applicants have not provided any comment or provided a response within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal and the Tribunal will make a decision on relevant information including the information in the s. 359A letter referred to above. 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 [it or him or her] to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the applicants’ comments or response.

16. Therefore, cl.186.233 is not met.

17. The applicants have 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.

18. Having affirmed the decision to refuse to grant the applicant’s visa, the Tribunal finds the second, third and fourth named applicants do not satisfy cl.186.311 because they are not members 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 the visa.

    DECISION

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

    Ian Berry
    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.