ZHAO (Migration)

[2020] AATA 1593

ZHAO (Migration) [2020] AATA 1593 (8 May 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Jun Zhao Ms Hui Li

Master Sihao Zhao

CASE NUMBER:  1727416

HOME AFFAIRS REFERENCE(S):          BCC2017/1479641

MEMBER:  Wan Shum

DATE:  8 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 08 May 2020 at 2:06pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Head Chef – subject of an approved nomination – nominator gone into liquidation – 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 Immigration and Border Protection on 17 October 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

1. The applicants applied for the visas on 24 April 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

1. 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.

1. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the position of Head Chef in relation to a nomination made by Red Chilli Sichuan Restaurant (Chatswood) Pty Ltd. The nomination application was refused by the department on 7 September 2017.

1. Consequently, there was no approved nomination in respect of the first named applicant and he was found not to satisfy cl.186.223 of Schedule 2 to the Regulations. The delegate refused to grant the visas.

1. The applicants have sought review of that decision. Red Chilli Sichuan Restaurant (Chatswood) Pty Ltd (the nominator) also sought review in respect of the nomination. Both parties were represented in relation to the review by the same registered migration agent.

1. On 2 March 2020, the Tribunal was informed by the representative that the nominator had gone into liquidation. It appears that an external administrator was appointed, Greengate Advisory. The Tribunal contacted the administrator who advised that that the company is not trading or employing any staff and that the company was wound up on 16 September 2019.

1. The applicant appeared before the Tribunal on 5 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the position to which the visa application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream. That approval needed to have identified the applicant for the position and 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.

1. 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.

1. The applicant was identified in a nomination application made by the nominator under the Temporary Transition Stream (r.5.19(3)). This was the position that was the subject of the declaration that was required to be made as part of the visa application the subject of this review. The nomination application was initially refused by the department on 7 September 2017. The nominator sought review of that decision but then on 2 March 2020 the Tribunal was informed by the migration agent representing the nominator that it appeared to have gone into liquidation. The Tribunal contacted the external administrator as the company was still registered, but they did not withdraw the application for review. The Tribunal scheduled a combined hearing for the nominator and the applicants, but the representative advised that they would not appear for the scheduled hearing on 5 May 2020. Only the applicant appeared by phone on the day and time scheduled for the hearing.

1. The tribunal asked the applicant about what had happened to the restaurant. The applicant said that in the period that he had sought review of the refusal, the employer had experienced internal issues. He said that there was a management issue, and the business was sold to another party who was unable to attend the hearing. The applicant could not tell the tribunal the name of the new business and said that due to commercial confidentiality, he was not aware of the new business name. He explained that he had transferred to Melbourne and was working at a restaurant called Da Long Yi. It is part of a global overseas investment group.

1. The tribunal then put information to the applicant to comment or respond to. The tribunal explained that the information would be the reason, or part of the reason, for affirming the delegate’s decision. The tribunal advised the applicant that he could seek additional time to comment or respond to the information. The information was as follows: his representative had advised the Tribunal that the nominator had gone into administration. Greengate Advisory had informed the Tribunal that the nominator is not operating or employing any staff and that the company was wound up on 16 September 2019 and a liquidator was appointed.

1. The tribunal explained that the information was relevant because it is a requirement for the grant of the visa that the position is still available to him and that the nomination made by Red Chilli Sichuan Restaurant (Chatswood) Pty Ltd needs to be approved, as it is the nomination linked to his visa application.

1. The applicant chose to respond at the hearing and said that his case is a little special. He explained that in 2009 he was invited to Australia as a high salary cook or chef even though he did not meet the English language requirements. He explained that his first solicitor did not prepare all that was needed for his visa application, so it was rejected. He said that quite a few of his colleagues had been granted visas after his refusal. He claimed that his employer still highly recommended his work. There had been a lot of changes in the past three years which eventually led to the liquidation or bankruptcy of Red Chilli Restaurant. The applicant referred to his son and his wife moving to Australia with him and that it will be

especially hard on his son if they had to return to China now. He was close to doing the HSC, and as a parent, his son’s study was what worried him most.

1. The Tribunal acknowledges that the visa and nomination applications were made over 3 years ago and it has been around 2 and a half years since the review application was lodged. In that time, the nominator has gone into liquidation and an external administrator has been appointed. While the business is still registered with ASIC, according to the external administrator, it is no longer trading or employing any staff which effectively means that the nomination will not be approved. To meet the requirements for the grant of this visa, the nomination must be approved and the position must be available. It cannot be said that these requirements are met at the time of this decision.

1. This is the case even if he is currently employed in the same position with another business, as the position needs to have been the one that was the subject of the declaration made on the visa application form. There is no evidence before the Tribunal that the applicant meets the criterion for the grant of this vis

1. As the nomination has not been approved and the position is not available, the requirements of cl.186.223 have not been met. While the Tribunal is sympathetic to the applicant and his family’s circumstances, it does not have any power or discretion to find that the applicant meets this criterion for the grant of a Subclass 186 visa in circumstances where the nominating employer is no longer operating.

1. The 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.

DECISION

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

Wan Shum 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.