YOU (Migration)

[2020] AATA 3718

YOU (Migration) [2020] AATA 3718 (3 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr PENGJIN YOU
Ms YUTING WANG

CASE NUMBER:  1730746

HOME AFFAIRS REFERENCE(S):          BCC2017/1756784

MEMBER:Karen McNamara

DATE:3 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 3 July 2020 at 1:59pm

CATCHWORDS

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

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2
Migration Act 1958, ss 65, 359
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 Immigration and Border Protection (the delegate) on 4 December 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 17 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 Mr Pengjin You (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Wholesaler (ANZSCO 133312).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations which required Mr Pengjin You to be the subject of an approved nomination. The delegate found that the nomination lodged by PY Green Health Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration and Border Protection on 17 May 2017.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 186.223(2) was not met and therefore the applicant did not meet cl.186.223 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant, Ms Yuting Wang could not be granted a Subclass 186 visa, as she did not meet the secondary visa criterion (cl.186.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

8. The applicants applied to the Tribunal on 6 December 2017, for review of the delegate’s decision.

9. On 14 May 2020, Mr Pengjin You appeared before the Tribunal via telephone, to give evidence and present arguments on behalf of the applicants. The Tribunal also received oral evidence from Mr Zhe Xu (the nominator) in the related matter for the nomination application (AAT Case file 1727093). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

10. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

14. 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.

15. 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.

16. On the 17 June 2020, the Tribunal affirmed the decision refusing the approval of the nomination made by PY Green Health Pty Ltd (the nominator) in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.186.223(2) and as such cl.186.223 is not met.

17. On 18 June 2020, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by PY Green Health Pty Ltd, which the Tribunal explained was relevant to the applicant meeting cl.186.223(2) which requires the nomination to be approved. As the nomination has been refused, cl.186.223(2) is not met.

18. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 2 July 2020 the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act.

19. On the 2 July 2020, the applicant’s representative submitted on behalf of the applicants the following:

20. The Tribunal notes that Mr You’s submission of 2 July 2020 does not provide evidence that the applicants are subject of an approved nomination.

21. At the hearing of 14 May 2020, the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in his case, his visa application is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that his visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

22. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.186.223(2) of Schedule 2 to the Regulations.

23. As the first named applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 of Schedule 2 to the Regulations is not met.

24. There is no evidence before the Tribunal to indicate that the second named applicant meets the primary requirements for grant of the visa.

25. In relation to the second named applicant Ms Yuting Wang, the Tribunal notes that cl.186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

26. As the applicant has not met the requirements for the grant of a Subclass 186 visa, and is not the holder of a Subclass 186 visa, it follows that the secondary applicant, Ms Yuting Wang as a member of Mr Pengjin You’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.186.311 of Schedule 2 to the Regulations.

27. 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.

28. The Tribunal has considered the applicants’ submission to have the decision on their review application deferred pending the lodgement and outcome of a judicial review. Section 2A of the Administrative Appeals Tribunal Act 1975 (AAT Act) directs that in carrying out its functions; the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. Placing an applicant’s review on hold pending the lodgement and outcome of a judicial review does not achieve the objective of the functions of the Tribunal. The Tribunal therefore will not defer this matter indefinitely whilst the applicant lodges and awaits the outcome of the judicial review in regard to the associated nomination matter.

    DECISION

29. 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.