Zhang (Migration)

[2019] AATA 4582

Zhang (Migration) [2019] AATA 4582 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lin Zhang
Mr Yifan Zhang
Mrs Ping Wang

CASE NUMBER:  1801352

HOME AFFAIRS REFERENCE(S):           BCC2016/2321519

MEMBER:Andrew McLean Williams

DATE:20 September 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 20 September 2019 at 11:49am

CATCHWORDS
MIGRATION – Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Corporate General Manager – nomination refused – refusal decision affirmed under review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.13, Schedule 2, cl 186.233

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 18 January 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 11 July 2016. 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 also 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 Lin Zhang is seeking the visa in the Direct Entry stream, to work in the nominated position of Corporate General Manager (ANZSCO Code 111211).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations, because the first-named applicant did not have a nominated position which had been approved by the Minister.

6. Mr Lin Zhang appeared before the Tribunal on 9 July 2019 to give evidence and make submissions. 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, Mr Yuxin Fu of Austin International Migration and Education Group.

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 first-named applicant is able to satisfy the requirements of r.186.233.

   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. On 20 September 2019 the Tribunal made its decision in related Tribunal file 1800674.  In that matter the nominator GlenLin Pty Ltd had made an application for review of the decision of a delegate of the Minister made on 22 December 2017 to refuse to approve the position it had nominated for Mr Lin Zhang as a Corporate General Manager. 

13. On 20 September 2019 the Tribunal affirmed the original decision, meaning that the nomination of a position for Mr Lin Zhang for purposes of clause 186.233(3) was refused.

14. Therefore, cl.186.233 is not met. 

15. As the first-named applicant is unable to satisfy clause 186.233(3), the other applicants as family members of Mr Lin Zhang are unable to satisfy clause 186.311 in Schedule 2 of the regulations, such that they are also unable to obtain a Subclass 186 Visa.

16. 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.

    DECISION

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

    Andrew McLean Williams
    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.