Zheng (Migration)

[2020] AATA 1098

Zheng (Migration) [2020] AATA 1098 (6 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Xia Zheng
Mr Jian Chen

CASE NUMBER:  2001783

HOME AFFAIRS REFERENCE(S):          BCC2019/3687062

MEMBER:Mark Bishop

DATE:6 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 06 April 2020 at 11:03am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Corporate General Manager – subject of an approved nomination – hearing invitation – not ready for scheduled hearing – difficulty in finding a proper migration agent – adjournment declined – non-appearance before the Tribunal  – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

CASES
MIAC v Li (2013) 249 CLR 332

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 25 July 2019. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration 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 Direct Entry stream, to work in the nominated position of Corporate General Manager ANZSCO 111211

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because on 2 December 2019 the nomination lodged by E Jumbo Pty Ltd being the nomination referred to in cl.186.233(1), was refused by a delegate of the Minister for Home Affairs.

6. The applicants did not appear before the Tribunal.

7. On 25 March 2020 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 6 April 2020.The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

8. No response to the hearing invitation was received. However the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

9. The applicant provided a copy of the decision record to the Tribunal. The date of decision was 14 January 2020.

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

    Nomination of a position

11. The issue in the present case is whether the applicant has an approved nominating sponsor and position in which to be engaged in employment.

12. 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, located in regional Australia. 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.

13. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made 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.

14. On 25 March 2020 the applicant wrote to the Tribunal and advised she was not ready for the scheduled hearing because she was finding it difficult to find a proper migration agent. She advised her reason for this difficulty was because of the corona virus outbreak.

15. The Tribunal turns to consider this material. The High Court of Australia (HCA) in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner which is reasonable and has regard to the statutory purposes of s.360. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct a conduct its review in a manner which ‘is fair, just, economical, informal and quick’.

16. The Tribunal is aware the applicant has had since at least 14 January 2020 the opportunity to retain the services of a migration agent. This is sufficient time to retain and instruct a migration agent. The Tribunal is also aware the applicant has had the opportunity in more recent weeks to retain a migration over the phone and give instructions using that form of communication. The applicant has not availed herself of the time since January or other forms of communication. The Tribunal refused the application for an adjournment.

17. The applicant did not provide evidence demonstrating that she was the subject of a nomination approved by the Minister under r.5.19 as required by cl.186.233(3) of Schedule 2 to the Migration Regulations.

18. The Tribunal did not approve the nomination in respect of the nominator under r.5.19 of the Regulations made by the employer E Jumbo Pty Ltd in related case number 1616248. Hence the applicant in this review application does not meet cl.186.233 (3) of Schedule 2 to the Regulations.

19. Therefore, cl.186.233 is not met.

    Secondary Applicants

20. The secondary applicant in this review application is Mr Jian Chen. He is a member of the family unit of the review applicant in this review application.

21. As the secondary applicant is not 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 a visa, cl.186.311 is not satisfied.

22. As cl.186.311 is not satisfied the Tribunal finds the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa ae not satisfied. Therefore the Tribunal refuses the application by the secondary applicants for an Employer Nomination Scheme (sub class 186) visa.

    CONCLUDING PARAGRAPH (ALL ISSUES)

23. 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.

    DECISION

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

    Mark Bishop
    Member

    
    

    ATTACHMENT A

    186.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); and

    (aa)in relation to which the applicant is identified in the application under subparagraph

    5.19(4)(a)(ii); 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 no more than 6 months after the Minister approved the nomination.