ZHENG (Migration)

[2018] AATA 2479

ZHENG (Migration) [2018] AATA 2479 (6 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs XIA ZHENG
Mr JIAN CHEN

CASE NUMBER:  1618422

DIBP REFERENCE(S):  BCC2015/3519959

MEMBER:Sheridan Lee

DATE:6 June 2018

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 June 2018 at 9:12am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 – Employer Nomination Scheme – Subject of an approved or pending nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 363A
Migration Regulations 1994 (Cth), r 5.19, Schedule 2 cls 186.233, 186.311

CASES
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Singh v Minister for Immigration and Border Protection [2014] FCCA 1403
Yang v Minister for Immigration and Citizenship [2010] FMCA 890

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 18 October 2016 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. Mrs Xia Zheng and her husband Mr Jian Chen applied for the visas on 25 November 2015. 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 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Sales and Marketing Manager. This 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 lodged by E Jumbo Pty Ltd in respect of her was refused.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. 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).

8. On 21 May 2018, the Tribunal wrote to the applicant, pursuant to s.359A of the Act. The letter invited the applicant to provide comment on or respond to certain information. The particulars of the information were:

   ·On 15 September 2016, a delegate of the Minister for Immigration rejected an application by E Jumbo to nominate the position of Sales and Marketing Manager.

   ·On 18 May 2018, the Tribunal affirmed the decision under review.

9. The letter outlined that the information was relevant to the review because under cl.186.233 of Schedule 2 of the Regulations it is a requirement that the position specified in the visa application be subject to an application for nomination.

10. It was also explained, that the information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse the grant of a subclass 186 visa.

11. The letter invited comments or a response by 4 June 2018, noting that an extension of time to respond could be requested prior to that date.

12. The applicant did not make any submissions within the prescribed period. In addition, the applicant did not request an extension of time and there has been no further communication from either the applicant or its representative at the time of the Tribunal’s decision.

13. The Courts have confirmed that where an applicant fails to provide the requested information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.[1] Accordingly, as the applicant failed to give the information requested within the prescribed period, she has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

    [1] See Singh v Minister for Immigration and Border Protection [2014] FCCA 1403, 32-39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.

14. In these circumstances, subsection 359C(2) of the Act applies and the Tribunal has decided to proceed to decision without taking any further action to obtain the information.

15. As the decision to refuse the nominating employer’s application was affirmed by the Tribunal on 18 May 2018, and departmental records indicate that the applicant is not presently the subject of an approved or pending nomination, the Tribunal finds that the applicant does not meet the requirement in 186.233.

16. 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.

17. As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second named applicant does not satisfy the secondary criteria for a grant of a visa, as per cl.186.311 on the basis that they are not a member of a family unit of a person who holds a subclass 186 visa.

    DECISION

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

    Sheridan Lee
    Member