ZHAO (Migration)

[2018] AATA 5325

ZHAO (Migration) [2018] AATA 5325 (1 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms SHUYING ZHAO
Mr MINGHUI YANG
Master HAOCHENG YANG

CASE NUMBER:  1723477

DIBP REFERENCE(S):  BCC2017/2329982

MEMBER:Mr S Norman

DATE:1 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 November 2018 at 1:15pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19; Schedule 2, cls 186.233, 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 and Border Protection on 14 September 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

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 Agreement stream.

4. In the present case, the first named applicant/nominee (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Corporate Gen Manager (ANZSCO – 111211). The applicant is Ms Shuying Zhao (DOB. 1 December 1970). The nominator proposed to pay the nominee a base rate of $185,000 per annum. The Direct Entry stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination application had been refused by a Department delegate.

6. The applicant (Ms Shuying ZHAO), appeared before the Tribunal on 11 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Yi (Isaac) ZHANG (representing the nominating business).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the nomination application had been approved.

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii). 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.

10. On 10 August 2017 the nomination application lodged by the nominator (Plantet Tel Group P/L), was refused by a delegate of the Minister. By Department letter of 10 August 2017, the applicant was invited to comment about this matter. The delegate then said that Department records had indicated there was no response within the timeframe provided. As the nomination application had been refused, the Department delegate was not satisfied the applicant met cl.186.233(3).

11. Next, the delegate assessed the application within the other streams within this visa subclass. Regarding the Temporary Residence Transition Stream, the delegate noted that pursuant to cl.186.223(1)(a), the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the nomination only sought to meet the requirements of r.5.19(4), the applicant was not found to meet the criteria in cl.186.223. Next, the delegate assessed the application under the Agreement stream. However and again, the nomination only sought to meet the requirements of r.5.19(4), and therefore, the applicant does not meet the criteria in cl.186.242.

12. Next, the delegate also considered the visa application pursuant to the secondary criteria (cl.187.311). After noting neither the applicant nor any member of their family 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 the visa, the delegate found that cl.186.311 was not satisfied.

13. As the delegate was not satisfied the applicant met cl.186.233, 186.223, 186.242 or 186.311, they refused the visa applications for an Employer Nomination Scheme (subclass 186) visa.

14. At the Tribunal hearing, it was explained inter alia the applicant had worked for the nominating business since 2013, that she had been a branch manager for a bank in Shanghai, that she had connections with business persons in China and that may assist the nominating business secure investment and or Chinese business in Australia.

15. By s.359A letter of 17 October 2018 (issued by email), the Tribunal wrote to the applicant and advised that on 16 October 2018, the Tribunal had affirmed the Department decision not to approve the nomination in relation to her made by her nominating employer (Plant Tel Group Pty Ltd). The applicant was also advised that this information was relevant because cl.186.233(3) required the nomination made in relation to her by her nominating employer to have been approved; and that if the Tribunal relied on this information it may find the nomination in relation to the applicant had not been approved and consequently the decision under review would be affirmed. The applicant was requested to comment in writing by 31 October 2018. No comment was received from the applicant at the date and time of this decision.

16. That being said, based on the information before it, the Tribunal is not satisfied the applicant has met the criteria in cl.186.233(3); or that she had met the criteria in cl.186.233.

17. The applicant has 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.

18. Finally, the Tribunal understands it is unclear if Mr MINGHUI YANG was onshore at the time of the visa application. Be that as it may, assuming the Tribunal has jurisdiction to hear the review with respect to him, I have considered cl.186.311 (member of the family unit). However, as none of the applicants holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa, none of the applicants have satisfied the criteria for the grant of the visa pursuant to cl.186.311.

19. Therefore the Tribunal affirms the decision to refuse the Employer Nomination Scheme (subclass 186) visas.

    DECISION

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

    Mr S Norman
    Member