Zhang (Migration)

[2019] AATA 4512

Zhang (Migration) [2019] AATA 4512 (2 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lei Zhang
Ms Jun Feng

CASE NUMBER:  1809601

HOME AFFAIRS REFERENCE(S):           BCC2017/1457411

MEMBER:Amanda Mendes Da Costa

DATE:2 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 October 2019 at 2:35pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 186.223

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 6 April 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 21 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 (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager.

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the Regulations because the first named applicant did not have an approved nomination which has not subsequently been withdrawn, that the position is still available to the first named applicant and the visa application was made no more than six months after the Minister approved the nomination.

6. The applicants appeared before the Tribunal on 15 July 2019 to give evidence and present arguments. The hearing was listed as a combined hearing with the nomination refusal case of the first named applicant’s prospective employer, Dr Vision Pty Ltd AFT Jiang No. 1 Family Trust (the company).  The Tribunal notes that despite being invited, the company did not attend the hearing and its application for review has subsequently been dismissed.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the first named applicant has an approved nomination.

    Nomination of a position

11. 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.

12. 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.

13. The applicant told the Tribunal that the company was being forced to vacate its business premises as its lease was ceasing in 2020 and that the company was no longer in a position to offer him employment.

14. The first named applicant further conceded that he did not have an approved nomination for a position as a Café or Restaurant Manager (ANZSCO 141111) and accordingly did not meet the requirements of cl.186.223.

15. At the conclusion of the hearing, the Tribunal gave the applicants until 30 September 2019 to provide any further information to the Tribunal regarding their review application.  The Tribunal notes that the applicants have not provided it with any further information.  

16. Based on the evidence before it, the Tribunal is not satisfied that the first named applicant meets the requirements of cl.186.223.

17. The first named applicant 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 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.

18. In relation to the second named applicant, the Tribunal finds that as the first named applicant does not satisfies the criteria for grant of an Employer Nomination Scheme (subclass 186) visa, the second named applicant does not meet the criteria for a Subclass 186 visa as a member of the family unit of a person who has satisfied the primary criteria.

    DECISION

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

    Amanda Mendes Da Costa
    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.