ZHANG (Migration)

[2019] AATA 1495

ZHANG (Migration) [2019] AATA 1495 (4 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms XUCHUN ZHANG
Mr JINNAN FANG

CASE NUMBER:  1717253

DIBP REFERENCE(S):  BCC2016/4299732

MEMBER:Ian Berry

DATE:4 January 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 04 January 2019 at 8:52am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223, 186.311

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 on 18 July 2017 to refuse to grant the visa applicant a Employer Nomination (Permanent) Subclass 186 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 20 December 2016. The delegate refused to grant the visa on the basis that the nominator employer’s nomination application was refused. Therefore the 1^st named applicant did not have an approved nomination which had not been subsequently withdrawn.

3. The applicants did not appear before the Tribunal on the appointed hearing date of 13 September 2018 to give evidence and present arguments, by reason of the applicant advised the Tribunal, because the nominating employer is not attending, has decided not to attend.

4. Moreover, the applicants requested that the Tribunal proceed with the consideration of their application without conducting a hearing.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the 1^st named applicant has an approved nomination that has not subsequently been withdrawn.

8. On 28 August 2018 at 12 midday, the applicant’s application was set for hearing for which 1 hour is allocated. The appropriate notice was sent to the applicants on 8 August 2018.

9. On 28 August 2018 the applicant’s migration agent requested an adjournment of the hearing because of illness with the applicant’s child. In those circumstances, the Tribunal agreed to postpone the hearing by vacate in the hearing date and time.

10. On 28 August 2018, the Tribunal wrote to the applicant’s advising that a new hearing date had been set for 13 September 2018 at 1 PM for the duration of 1 hour.

11. On 8 September 2018, the migration agents representing the applicants submitted the basis upon which the application ought to be approved[1].

    [1] Tribunal File, folio 40

12. On 13 September 2018, the applicants wrote to the Tribunal requesting the Tribunal make a decision without the applicants having to attend.

13. On 21 December 2018, the applicant’s nominator provided the Tribunal with a Withdrawal of application for migration or refugee review – MR division. The effect of this form was the withdrawal of the nomination by the applicant’s employer.

14. The Tribunal is satisfied that the 1^st named applicant does not satisfy cl.186.223 of Part 186 to Schedule 2 of the Regulations.

15. Cl.186.311 requires inter-alia that an applicant is a member 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 that Visa. As neither the 1^st named applicant, nor the other family member, has satisfied the primary criteria for the grant of the subclass 186 visa, the Tribunal is not satisfied that cl.186.311 has been met.

    DECISION

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

    Ian Berry
    Member