ZHAO (Migration)

[2019] AATA 2165

ZHAO (Migration) [2019] AATA 2165 (8 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Yuan ZHAO
Mr Jianing WU
Master Antonio WU
Miss Xiatong WU

CASE NUMBER:  1823259

HOME AFFAIRS REFERENCE(S):           BCC2017/2330257

MEMBER:Alan McMurran

DATE:8 April 2019

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 April 2019 at 9:58am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent)(Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – nominated position marketing specialist not approved – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994, Schedule 2, r 1.13, 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 23 July 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 30 June 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 the Temporary Residence Transition stream, to work in the nominated position of marketing specialist.

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 applicant was not the subject of a nomination which had been approved by the Minister and the applicant did not meet cl. 186. 223 (2).

6. The applicant was invited to a combined hearing with an application for review by the nominator, who appeared before the Tribunal on 21 January 2019 to give evidence and present arguments. The applicant did not appear.

7. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing on 21 January 2019 with a witness for the nominator, Southern Cross Travel Pty Ltd. The representative consented to the application proceeding in the absence of the applicant, and conceded that if the nomination review was unsuccessful, then the visa application would also fail.

8. On 23 January 2019, the Tribunal affirmed the decision of the Department to refuse the nomination application by Southern Cross Travel Pty. Limited.[1]

   [1] T case file 1818593

9. On 24 January 2019, the Tribunal sent a letter under section 359A of the Act, inviting the applicant to comment or respond to certain information which the Tribunal considers would, subject to comments or response, be the reason, or a part of the reason, for affirming the decision under review. Particulars of the information were that the nomination lodged by Southern Cross Travel Pty Limited was refused by the Department and that decision had been affirmed by the Tribunal.

10. The applicant was requested to respond by 7 February 2019, failing which the applicant lost any further entitlement to appear before the Tribunal to give evidence and present arguments. The applicants did not respond. The Tribunal has proceeded with this review on the basis of the information presently available.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has proved for the occupation of marketing specialist, in favour of the nominator, Southern Cross Travel Pty Limited.

    Nomination of a position

13. 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.

14. 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.

15. The applicant is a citizen of the People’s Republic of China who first came to Australia on 13 January 2014. The applicant obtained a 457 visa for the position of marketing specialist on 5 March 2015, expiring 5 March 2019. The applicant was sponsored by Southern Cross Travel Pty Ltd. (the sponsor) for whom she has worked continuously in that period.

16. The applicant lodged this application for review on 12 August 2018. The Tribunal is satisfied that the applicant is the nominee in an application by the sponsor for the position of marketing specialist.

17. In support of the application, the applicant has relied upon the information supplied to the Tribunal in the related file for the nominator, Southern Cross Travel Pty Limited[2], together with the information in the application to the Department by the visa applicant, and the Tribunal’s file for the visa applicant. The Tribunal has had regard to the information provided by the sponsor, and the visa applicant’s representative at the hearing on 21 January 2019. That information focused on the review of the sponsor’s nomination application, and the issue primarily of training expenditure. The representative conceded that if the nomination review was unsuccessful, the application by the visa holder must also fail.

    [2] T case file 1818593

18. The regulations require that in order for the applicant to be approved for a visa under the employer nomination scheme, Subclass 186, the Minister must have approved the nomination. There is no discretion in the Tribunal to waive this requirement, and if the nomination of the applicant by the sponsor is not successful, then the visa application must also fail.

19. Having reviewed the information available to the Tribunal, the Tribunal is satisfied that the applicant is not the subject of a nomination which has been approved by the Minister. The Tribunal is also satisfied that there is no application for a review underway in respect of the refusal of the sponsor’s application for the nomination, which was affirmed by the Tribunal on 23 January 2019.

20. The Tribunal finds that the applicant has not responded to the Tribunal’s invitation to provide further information or response to its letter of 24 January 2019, which required a response by 7 February 2019. Other than for the application itself, there is no further information provided by the applicant for the Tribunal to consider.

21. Consequently, the Tribunal finds that the Minister has not approved the nomination by Southern Cross Travel Pty Limited, and the applicant is not the subject of an approved nomination.

22. Therefore, cl.186.223 is not met.

23. 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.

    Secondary Applicants

24. The secondary applicants are members of the family unit of the applicant.

25. In order to qualify for the visa, the secondary applicants must be members 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 that visa, and who have made a combined application with the primary applicant.[3]

    [3] Regulation 186.311(a)

26. As the primary applicant does not hold a subclass 186 visa, the Tribunal finds the secondary applicants are not members of the family unit of a person who holds a subclass 186 visa and do not satisfy regulation 186.311.

    DECISION

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

    Alan McMurran
    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.